State v. MaumalangaState v. Maumalanga
Lead Opinion
I. INTRODUCTION
Defendant-Appellant Malakai Maumalan-ga (Defendant) appeals the First Circuit Court’s June 28, 1996 Amended Judgment of Conviction and Probation Sentence.
On June 8, 1996, Defendant had been working at EM Tours as a porter. Because an alleged anonymous phone call was received by the tour company that it would be robbed that evening, Defendant brought two guns to work with him that day. Apparently, no robbery occurred.
While at work on June 8, 1996, Defendant heard of a possible drive-by shooting at Ka-noa Park. Defendant then left work at about 10:00 p.m. to personally drive home two of his friends who were at the park during the drive-by shooting. After dropping off his friends, Defendant went to a gas station to put gas in his car. While at the gas station, Defendant coincidentally saw boys who he suspected were involved in the drive-by shooting.
Defendant alleged that one of the boys at the gas station pulled out a gun and aimed it at Defendant. Because Defendant unsuccessfully attempted to drive away, Defendant allegedly had no choice but to grab his gun and aim it at the boys. Defendant then shot off around four to five rounds from his gun.
Defendant was subsequently arrested and charged with seven counts: Attempted Murder in the First Degree (Count I); Attempted Murder in the Second Degree (Counts II and III); Place to Keep Loaded Firearm (Count IV);
The trial court subsequently granted, in part, Defendant’s motion for directed verdict and thereby acquitted Defendant of Counts VI and VII.
At trial, Defendant specifically raised a choice of evils defense to the charge of Place to Keep Loaded Firearm,
It is a defense to the offense charged that the defendant’s conduct was legally justified. The law recognizes the “choice of evils” defense, also referred to as the “necessity” defense.
The “choice of evils” defense justifies the defendant’s conduct if the defendant reasonably believed that compliance with the law would have resulted in greater harm to himself or another than the harm sought to be prevented by the law defining the offense charged.
In order for the “choice of evils” defense to apply, four conditions must be satisfied. First, the defendant must have reasonably believed that there was no legal alternative available to him. Second, the defendant must have reasonably believed that the harm sought to be prevented was imminent or immediate. Third, the defendant’s conduct must have been reasonably designed to actually prevent the threat of greater harm. Fourth, the harm sought to be avoided must have been greater than the harm sought to be prevented by the law defining the offense charged.
Accordingly, if the prosecution has not proved beyond a reasonable doubt that the defendant’s conduct was not legally justified by the “choice of evils” defense, then you must find the defendant not guilty of Count IV: Place to Keep Loaded Firearm. If the prosecution has done so, then you must find that the “choice of evils” defense does not apply.5
(Patterned Hawai'i Jury Instruction 7.12) (emphasis added).
Subsequently, the jury acquitted Defendant of Counts I, II, III, and V. The jury found Defendant guilty of Count IV — Place to Keep Loaded Firearm.
An Amended Judgment of Conviction and Probation Sentence was entered on June 28, 1996.
III. DISCUSSION
A. Jurisdiction
Preliminarily, there is a question of jurisdiction in this case because Defendant filed his notice of appeal fifty-nine days late, or ninety days after the trial court entered its judgment. Pursuant to Hawaii Rules of Appellate Procedure (HRAP) Rule 4(b), a criminal defendant must file a notice of appeal “within 30 days after the entry of the judgment or order appealed from.” However, “[t]his court and the Hawaii Supreme Court have seen fit in criminal cases to relax the deadline for filing a notice of appeal where justice so warrants.” State v. Ahlo,
B. Jury Instructions
Defendant appeals only his conviction of Place to Keep Loaded Firearm. In that regard, Defendant only challenges the jury’s instruction regarding his choice of evils justification defense.
1. Standard of review.
“In reviewing jury instructions, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading.” State v. Maelega,
2. The current status of the choice of evils defense in Hawai‘i.
Choice of evils. (1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that:
(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged[.]
Because the Hawai'i Penal Code (the Code) is derived from the Model Penal Code (MPC), Hse. Stand. Comm. Rep. No. 227, in 1971 House Journal, at 784,
(1) Where there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law....
(2) A closely related required element is that the harm to be prevented be imminent. ...
(3) Thirdly, and most importantly, even assuming arguendo that alternative courses of action were “unavailable” ... defendants remain unentitled to the defense of “necessity” because their actions were not reasonably designed to actually prevent the threatened greater harm.
Id. at 472,
Following the enactment of
Subsequently, in 1996, we reaffirmed our decision in Kealoha and surmised that, pursuant to
the necessity or choice of evils justification defense is not applicable when one or both of the following requirements is not satisfied: (1) the defendant reasonably believed that it was necessary to commit the crime to avoid an imminent harm or evil to himself or to others; or (2) the harm or evil sought to be avoided was greater than the harm or evil generated by the crime committed.
State v. DeCastro,
We further reiterated our holding in Keal-oha that,
with respect to requirement (1) above, a person does not reasonably believe that it is necessary to commit a crime to avoid an imminent harm or evil to himself or others when one or more of the following is a fact:
(a) A third alternative that did not involve the commission of a crime was reasonably available to the person;
(b) The crime committed was not reasonably designed to actually avoid the harm or evil sought to be avoided; or
(c) The harm or evil sought to be avoided was not imminent when the person committed the crime.
Id. at 153-54,
However, in DeCastro, Judge Acoba disagreed with the application of the three-part Marley test because in his opinion, “the common law requirements set forth in Kealoha [and Marley ] conflict with the express language of
the justification defense is satisfied when the following factors are established: the defendant (1) reasonably believes (2) the conduct is necessary (3) to avoid harm or evil to the actor or another which is (4) imminent, and (5) the harm or evil sought to be avoided is greater than the violative conduct.
Id.
Defendant now asks us to revisit our holdings in Kealoha and DeCastro on the basis
3. We reaffirm our holdings in Kealoha and DeCastro with clarification.
Our decisions in Kealoha and DeCastro are consistent with the general principles of statutory construction as well as the Code’s rule of construction. Therefore, we reject any argument that Kealoha and DeCastro go beyond the scope of permissible construction.
a.
Principles of construction. The provisions of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, .in order to promote justice and effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of the words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.
(Emphasis added.) Thus,
We are also guided by the following principles of statutory construction:
The starting point in statutory construction is to determine the legislative intent from the language of the statute itself. It is a cardinal rule of statutory construction that courts are bound to give effect to all parts of a statute, and that ,no clause, sentence, or word shall be construed as superfluous, void or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute. Penal statutes are to be strictly construed. However, the strict construction rule does not permit the court to ignore legislative intent, nor require the court to reject that construction that best harmonizes with the design of the statute or the end sought to be achieved.
State v. Mitsuda,
b.
Based on the aforementioned principles, we make the following observations. In light of our holdings in Kealoha and DeCastro, the law in Hawaii on a choice of evils justification defense is still governed by
The language of
The whole matter, with all of its ramifications is to be weighed by the court and the jury in the same manner as in any criminal proceeding. If the defendant’s conduct was not necessary, if one evil was not greater than the other, if the defendant exceeded the reasonable bounds of intelligence and morality, the defendant may be convicted for the defendant’s conduct notwithstanding the defendant’s attempts to justify the defendant’s actions.
Finally, many commentators have had difficulty with the concept of necessity because of the possibility of unforeseeable changes in the perilous situation. For instance, if a number of passengers are thrown overboard from a ship to save a much larger number of persons, there is really no way for the actors to foresee theexact moment when a rescue ship may arrive. There is always the chance that help will arrive in time to make the emergency action unnecessary. Such objections, however, fail to take account of the fact that other defenses which are predicated on a threat to person or property can take account only of the probability of harm. One can never guarantee that the uplifted knife will be plunged into the victim. If necessity is not admitted where there is a high degree of probability of disastrous consequences if action is -not taken, then it can never be admitted. A person faced with such seeming necessity is and will remain in a personal moral quandary because of the person’s uncertainty. Our only point is that the threat of criminal punishment is unneeded here.
(Emphases added) (internal quotation marks and footnote omitted).
Our holdings in Kealoha and DeCas-tro recognize the difficulty with the concept of when an actor reasonably believes his or her conduct to be “necessary to avoid an imminent harm or evil to the actor or to another.” Thus, our case law simply provides considerations for interpreting this first requirement of the statute; they do not create elements which add to the requirements of
As to consideration (1), although the statute does not include language about a third legal alternative, it also does not add to the statute because it is another way of defining whether a defendant reasonably believed it was necessary to commit a crime in order to avoid harm to himself or others. A choice of evils defense is exactly what it says — a defendant must be in a position of choosing between two evils. See United States v. Bailey,
As to consideration (2),
Finally, consideration (3) articulates the element of imminency and does not add anything to the requirements of
Even the drafters of the MPC recognized these aforementioned considerations:
[T]he formulation makes the actor’s belief in the necessity sufficient (assuming avalid choice of evils) unless the crime can be committed recklessly or negligently, in which case recklessness or negligence as to the necessity suffices. Questions of immediacy and of alternatives have bearing, of course, on the genuineness of a belief in necessity, as well as on the actor’s recklessness or negligence when either is material. Not even actual necessity suffices unless the actor acted on belief in its existence; under the formulation in the draft, one cannot act by accident from necessity.
MPC § 3.02 at 10 (Tentative Draft No. 8, 1958) (Tentative Draft No. 8 remained unchanged in its final draft) (cited in MPC part I Commentaries, Vol. 2, at 9 (Off. Draft and Rev. Comm.1962)).
To be sure, the “common law” considerations of Kealoha and DeCastro do not make it more difficult for a defendant to prevail on a choice of evils defense. The considerations are just that — considerations. They do not add additional elements to a choice of evils defense because they are merely interpreta-tional guidelines to assist a jury or court in determining the validity of a choice of evils defense.
c.
We also find it noteworthy that the express considerations set forth in Kealoha and DeCastro are in accord with at least five other jurisdictions. In Commonwealth v. Capitolo,
However, the Pennsylvania court commented that:
The defense of necessity, however, does not arise from a “choice” of several courses of actions; instead it is based on a real emergency. It can be asserted only by an actor who is confronted with such a crisis as a personal danger (to oneself or others), a crisis which does not permit a selection from among several solutions, some of which do not involve criminal acts. Accordingly, the defense can be raised only in situations that deal with harms or evils that are readily apparent and recognizable to reasonable persons. The defense cannot be permitted to justify acts taken to foreclose speculative and uncertain dangers, and is therefore limited in application to acts directed at the avoidance of harm that is reasonably certain to occur.
Furthermore, the actor must reasonably believe that the conduct chosen was necessary to avoid the greater threatened harm or evil. Because the harm must be real, and not an imagined, speculative, or non-imminent harm, the actions taken to avoid the harm must support a reasonable belief or inference that the actions would be effective in avoiding or alleviating the impending harm.
Id.
Based on these aforementioned considerations, the court held that:
In order, then, to be entitled to an instruction on justification as a defense to a crime charged, the actor must first offer evidence that will show:
(1) that the actor was faced with a clear and imminent harm, not one which is debatable or speculative;
(2) that the actor could reasonably expect that the actor’s actions would be effective in avoiding this greater harm;
(3) that there is no legal alternative which will be effective in abating the harm; and
(4) that the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.
Id. at 809.
The Pennsylvania court apparently felt that the express wording of its statute did not adequately cover some compelling considerations of a choice of evils defense. Thus, without adding elements to a statutory justification defense, it articulated considerations which, when present, would defeat a
Accordingly, we reaffirm our holdings in Kealoha and DeCastro.
4. The choice of evils instruction was erroneous; however, a vacatur of conviction is not required.
a.
The jury instruction in this case, patterned after Hawaii Jury Instruction 7.12, stated as follows:
It is a defense to the offense charged that the defendant’s conduct was legally justified. The law recognizes the “choice of evils” defense, also referred to as the “necessity” defense.
The “choice of evils” defense justifies the defendant’s conduct if the defendant reasonably believed that compliance with the law would have resulted in greater harm to himself or another than the harm sought to be prevented by the law defining the offense charged.
In order for the “choice of evils” defense to apply, four conditions must be satisfied. First, the defendant must have reasonably believed that there was no legal alternative available to him. Second, the defendant must have reasonably believed that the harm sought to be prevented was imminent or immediate. Third, the defendant’s conduct must have been reasonably designed to actually prevent the threat of greater harm. Fourth, the harm sought to be avoided must have been greater than the harm sought to be prevented by the law defining the offense charged.
Accordingly, if the prosecution has not proved beyond a reasonable doubt that the defendant’s conduct was not legally justified by the “choice of evils” defense, then you must find the defendant not guilty of Count IV: Place to Keep Loaded Firearm. If the prosecution has done so, then you must find that the “choice of evils” defense does not apply.
(Emphasis added.)
The jury instruction on the choice of evils justification defense complies with the language of
Nevertheless, we find error with the instruction because it fails to articulate that the “common law” elements set forth in Kealoha and DeCastro are considerations for purposes
An accurate reflection of the law would be to first acknowledge that, pursuant to
Thereafter, the instruction should advise the jury that
with respect to requirement (1) above, a person does not reasonably believe that it is necessary to commit a crime to avoid an imminent harm or evil to himself or others when one or more of the following is a fact:
(a) A third alternative that did not involve the commission of a crime was reasonably available to the person;
(b) The crime committed was not reasonably designed to actually avoid the harm of evil sought to be avoided; or
(c) The harm or evil sought to be avoided was not imminent when the person committed the crime.
DeCastro,
b.
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. Error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.
State v. Loa,
Although the jury instruction in this case did not accurately reflect the law on choice of evils in Hawaii, such an error does not require a reversal of Defendant’s conviction.
■ In this case, Defendant presented one argument to the jury for a choice of evils defense: that his co-worker asked him to bring some “protection” to work because an anonymous telephone call indicated that the company would be robbed that day. See n.4.
However, the facts surrounding the Place to Keep Loaded Firearm charge arose out of Defendant’s possession of a loaded gun in his waistband while sitting in his car at a gas station. See n.3. Thus, even if we were to accept that Defendant’s only reason for carrying a loaded gun that day was because of an anonymous tip that his workplace would be robbed, it does not logically follow that he had no choice but to carry a loaded gun to a gas station which was located away from his work place. If Defendant’s reason for carrying a loaded gun were true, then he should have left his gun at the location that was supposed to have been robbed. In light of the factual basis for the charge, Defendant’s argument that he had no choice but to bring a loaded gun to work is too far removed. As such, we believe there is no reasonable possibility that the erroneous jury instruction contributed to his conviction of Place to Keep Loaded Firearm.
Defendant also argues that the four conditions set forth in the jury instructions “improperly placed the burden of proving the defense on the defendant by implying that the burden was a ‘question of fact’ to be decided by the jury.” In other words, “[t]he result of [the jury instruction] is a ‘shifted burden.’ In essence, the jury was ‘given the opportunity to reject the defense as less than credible’ before the state was put to the test of disproving the defense beyond a reasonable doubt.” However, it is a long-standing rule in Hawai'i that
[w]here the defense is justification, once evidence of a fact, or set of facts, which negatives penal liability has been introduced, the burden is on thq prosecution to disprove the facts that have been introduced or to prove facts negativing the justification defense and to do so beyond a reasonable doubt.
State v. Straub,
Thus, the “result” complained of by Defendant is exactly what is mandated by law: that the defendant first has the burden to put into evidence a set of facts which negative penal liability and, once accomplished, the burden shifts to the State to disprove the defense beyond a reasonable doubt. See id. As such, Defendant’s argument is without merit.
IV. CONCLUSION
In conclusion, we reaffirm our holdings in Kealoha and DeCastro and, therefore, affirm the June 28, 1996 Amended Judgment, Conviction and Probation Sentence.
Notes
. Defendant-Appellant Malakai Maumalanga’s (Defendant) Notice of Appeal indicates that he is appealing the May 28, 1996 Judgment of Conviction and Probation Sentence. However, an Amended Judgment of Conviction and Probation Sentence was filed on June 28, 1996, and therefore we will address Maumalanga's appeal as though he were appealing the June 28, 1996 amended judgment.
. The Place to Keep Loaded Firearm charge arose out of the following facts: (1) that Defendant carried a loaded pistol; (2) that Defendant had no license to do so; and (3) that Defendant was carrying it in his waistband while in the car at the gas station. See Hawaii Revised Statutes (HRS) § 134 — 6(c) (1993), infra n.4.
.
Carrying or use of firearm in the commission of a separate felony; place to keep firearms; loaded firearms; penalty.
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(c) Except as provided in sections 134-5 and 134-9, all firearms and ammunition shall be confined to the possessor’s place of business, residence, or sojourn; provided that it shall be lawful to carry unloaded firearms or ammunition or both in an enclosed container from the place of purchase to the purchaser’s place of business, residence, or sojourn, or between these places upon change of place of business, residence, or sojourn, or between these places and the following: a place of repair; a target range; a licensed dealer's place of business; an organized, scheduled firearms show or exhibit; a place of formal hunter or firearm use training or instruction; or a police station. "Enclosed container” means a rigidly constructed receptacle, or a commercially manufactured gun case, or the equivalent thereof that completely encloses the firearm.
(e) Any person violating subsection (a) or (b) shall be guilty of a class A felony. Any person violating this section by carrying or possessing a loaded firearm or by carrying or possessing a loaded or unloaded pistol or revolver without a license issued as provided in section 134 — 9 shall be guilty of a class B felony. Any person violating this section by carrying or possessing an unloaded firearm, other than a pistol or revolver, shall be guilty of a class C felony.
. Defendant’s proposed jury instruction stated as follows:
It is a defense to the offense in Count IV of the complaint, Place to Keep Loaded Firearm, that the [Djefendant’s conduct was legally justified. The law recognized the "choice of evils” defense, also referred to as the "necessity” defense.
The "choice of evils” defense justifies the [D]efendant’s conduct if the defendant reasonably believed that compliance with the law would have resulted in greater harm to himself or another than the harm sought to be prevented by the law defining the offense charged.
The "choice of evils” defense is not applicable if the prosecution has proved beyond a reasonable doubt that:
(1) [Defendant] did not reasonably believe that his conduct was necessary in order to avoid an imminent harm or evil to himself or another; or
(2) the harm or evil sought to be avoided by [Defendant's] conduct was not greater than the harm sought to be prevented by this law defining the offense charged.
Accordingly, if the prosecution has not proven beyond a reasonable doubt that the defendant’s conduct was not legally justified by the "choice of evils” defense, then you must find the defendant not guilty of Place to Keep Loaded Firearm, in Count IV. If the prosecution has done so, then [you] must find that the “choice of evils” defense does not apply.
. The original judgment was filed on March 28, 1996, but it failed to indicate the disposition of Count IV — Place to Keep Loaded Firearm. Consequently, an amended judgment was filed on June 28, 1996 and indicated that Defendant was found guilty of Count IV — Place to Keep Loaded Firearm.
.
Choice of evils. (1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that:
(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and
(b) Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.
(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for the actor's conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
(3) In a prosecution for escape under section 710-1020 or 710-1021, the defense available under this section is limited to an affirmative defense consisting of the following elements:
(a) The actor receives a threat, express or implied, of death, substantial bodily injury, or forcible sexual attack;
(b) Complaint to the proper prison authorities is either impossible under the circumstances or there exists a history of futile complaints;
(c) Under the circumstances there is no time or opportunity to resort to the courts;
(d) No force or violence is used against prison personnel or other innocent persons; and
(e) The actor promptly reports to the proper authorities when the actor has attained a position of safety from the immediate threat.
Subsections (l)(b) and (c) are not applicable in this case because neither party asserts, and the record does not indicate, that either section applies. Subsection (2) does not apply because neither party asserts, and the record does not indicate, that Defendant was reckless or negligent in bringing about the situation. Subsection (3) does not apply because this was not a prosecution for escape.
. Section 3.02 of the Model Penal Code (MPC) provides:
Section 3.02. Justification Generally: Choice of Evils.
(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself [or herself] or to another is justifiable, provided that:
(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and
(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his [or her] conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
MPC § 3.02 (Official Draft 1962) (asterisk omitted). The only substantial difference between the Hawai’i Penal Code’s (the Code) version of the choice of evils defense and the MPC's version is that the Code requires an element of imminency.
. State v. Marley,
. Additionally, there are jurisdictions which do not codify a choice of evils or necessity defense. In those jurisdictions, the courts appear to follow the common law elements for a choice of evils defense which provide an expanded analysis for determining whether a defendant is excused from liability. See People v. Metters,
. To the extent that we have found error with the instruction given in this case, we declare Hawaii Jury Instruction 7.12 to be an erroneous statement of the law.
. We are not saying that as a matter of law the instruction should not have been given. A defendant is "entitled to an instruction on every defense or theory of defense having any support in the evidence, provided such evidence would support the consideration of that issue by the jury, no matter how weak, inconclusive or unsatisfactory the evidence may be." State v. Robinson,
Our conclusion that there was no reasonable possibility that the erroneous jury instruction contributed to Defendant’s conviction in this case is based upon the evidence submitted to the jury. It is not a conclusion of law that Defendant was not entitled to a choice of evils instruction.
Concurrence Opinion
concurring in part and dissenting in part.
I concur with the majority’s conclusion that the choice of evils instruction of the first circuit court (the court) was erroneous because it did not expressly set forth the statutory elements of that defense contained in Hawai'i Revised Statutes (HRS)
I.
In order for the “choice of evils” defense to apply, four conditions must be satisfied. First, the defendant must have reasonably believed that there was no legal alternative available to him. Second, the defendant must have reasonably believed that the harm sought to be prevented was imminent or immediate. Third, the defendant’s conduct must have been reasonably designed to actually prevent the threat of greater harm. Fourth, the harm sought to be avoided must have been greater thanthe harm sought to be prevented by the law defining the offense charged.
(Emphases added.)
As the majority points out, the second and fourth elements given by the court were derived from
II.
I also concur with the majority’s conclusion that the error was harmless. Because Defendant was acquitted of charges of Attempted Murder in the First Degree, Attempted Murder in the Second Degree, and Terroristic Threatening in the First Degree, the only conviction on appeal is Defendant’s conviction for Place to Keep Firearms,
This was the sole argument Defendant made to the jury with respect to the choice of evils defense. As such, I believe the jury could have properly rejected this defense because there was no evidence presented to demonstrate that Defendant believed it was necessary, as
On appeal, Defendant appears to offer a new theory about his choice of evils defense:
There was evidence that: (1) both [Defendant] and his family had been harassed by the Pinoy Gang; (2) the police had failed to render help under these circumstances; and, (3) [Defendant] knew that a member of the Pinoy Gang had shot someone in a park in a drive-by shooting....
A reasonable juror could have found that under the “plain language” of [HRS § 703-302 ] ... [Defendant], in light of the above facts, reasonably believed it necessary to carry a handgun in order to protect himself from danger that could befall him at any time by a member of the Pinoy Gang. The harm sought to be avoided in this case was [Defendant’s] death, which is greater than the general harm sought to be avoided by the law defining the offense of Place to Keep Firearms.
However, Defendant never testified that he took the gun with him when he left EM Tours in order to protect himself or anyone else from a member of the Pinoy Gang. Although Defendant testified that Pinoy Gang members had been “harassing” him and his family, and Defendant knew that a member of that gang had shot someone from Defendant’s former gang earlier in the evening, there is no testimony by Defendant that he took the gun with him when he left EM Tours because he was scared by the Pinoy Gang or by the earlier shooting, and thus needed the gun to protect himself.
In the absence of such testimony, there would be no basis for the jury to have found that Defendant reasonably believed it was necessary to carry a gun when he left EM Tours in order to avoid imminent harm inflicted by the Pinoy Gang. In fact, Defendant
Given the testimony presented, the effect of the erroneous instruction was harmless. Even if the court had given an instruction which tracked the language of
III.
I note, further, that there are three limitations on the choice of evils defense set forth in
The third limitation, contained in
In this case, the instruction given for the offense of Place to Keep Pistol or Revolver set forth “intentionally, knowingly, or recklessly” as the alternative states of mind which would satisfy this element of the offense. (Emphasis added.) However, apparently no instruction was given advising the jury of the limitation set forth in
IV.
As previously stated, I cannot concur that a jury instruction on the choice of evils defense set forth in
[A] person does not reasonably believe that it is necessary to commit a crime to avoid an imminent harm or evil to himself [or herself] or others when one or more of the following is a fact:
(a) A third alternative that did not involve the commission of a crime was reasonably available to the person;
(b) The crime committed was not reasonably designed to actually avoid the harm or evil sought to be avoided; or
(c) The harm or evil sought to be avoided was not imminent when the person committed the crime.
Majority opinion at 106,
V.
The Kealoha and DeCastro formulations of the defense no longer apply because they were superseded when the HPC was adopted. Following the adoption of the HPC in 1973, “the express language of the [HPC] was controlling.” DeCastro,
Second, our construction of HPC provisions must be grounded in the words used. “[I]n order to promote justice and effect the objects of the law, all of the [HPC’s] provisions shall be given a genuine construction, according to the fair import of the words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”
Further, were it the intent of the legislature to incorporate additional considerations limiting the applicability of the defense, it could have done so, and I believe it would have done so as it did in subsection (3) of
The effect of the considerations is to further restrict the use of the defense. See discussion infra. This ostensibly is based upon the majority’s belief that the language of
[TJhere are numerous safeguards built into [HRS]§ 703-302 . The danger of causing the necessity of choosing between evils must be imminent.' Moreover, subsection (2) provides that if the necessity of choosing between harms or evils results from the defendant’s recklessness or negligence, the defense is not available in a prosecution of any offense for which recklessness or negligence, as the case may be, suffices for conviction.
It is no defense under this section that the defendant thought compliance with the statute immoral or unwise; the legislative decision to make particular conduct criminal is to be given great weight.
Commentary on
Thus, even beyond the requirements of necessity, imminence, and greater harm, and the recklessness or negligence exception, the defense is not available if (1) specific .exceptions otherwise falling within the purview of the defense are included within the definition of an offense, or (2) a legislative purpose to exclude the defense exists. See
Finally, I do not regard the additions proposed by the majority as wise. This court has observed that “[t]he purpose of an instruction is to furnish guidance to the jury in their deliberations, and to aid them in arriving at a proper verdict.” McKeague v. Talbert,
VI.
The majority maintains that its considerations “do not add additional elements to a choice of evils defense because they are merely interpretational guidelines to assist a jury or court.” Majority opinion at 104,
A.
Plainly, the “considerations” are “additional elements.” By requiring that the jury be additionally instructed “with respect to requirement (1) [of
Of these three considerations, two are additional elements that now must be satisfied by the defendant in addition to those already imposed under
B.
As is equally evident, the considerations are not “merely interpretational guidelines,” majority opinion at 104,
VII.
In addition to my overall concerns with the majority’s proposed instruction, I have specific concerns with respect to each of the three considerations.
The first consideration, in effect, places upon a defendant the burden of adducing evidence that there was no “third alternative” or, assuming the existence of one, that such alternative was not “reasonably available.” Hence, the first consideration adds an element not expressly mandated by the statute, and thus limits the applicability of the defense. It is one thing to allow argument on a “third alternative” or any number of alternatives in final argument with respect to the “necessary” conduct element if such alternatives present themselves under the particular circumstances of the case; it is quite another thing to instruct the jury that such matters must be disproved under the evidence before the jury may consider the defense. See discussion infra part IX.
Additionally, the language of
VIII.
In my view, the second consideration, regarding whether the defendant’s act was “reasonably designed to actually avoid the [imminent] harm or evil[,]” also is unwarranted because it, too, is not dictated by
As with the first consideration, the second effectively adds a requirement not found in the text or justified in the commentary to the section. See DeCastro, 81 Hawai’i at 155,
Further, the second instruction engenders confusion for the jury in reconciling the statutory requirement that the defendant believes his or her conduct was “necessary,” and the consideration that his or her conduct was not “designed to actually avoid the harm.” (Emphasis added.) On one hand, the term “necessary” connotes conduct appropriate or suitable to the circumstances, thus directing the jury to deliberate on whether it was objectively reasonable for a defendant to believe that his or her conduct was appropriate or suitable under the circumstances. By contrast, the words “actually avoid” impart to the reader the sense that the conduct chosen by a defendant must be one certain or nearly certain of success in avoiding harm, rather than one of objective reasoned choice as
Accordingly, in seeming to place upon the defendant the burden of demonstrating certainty of success regarding the chosen conduct, the second consideration raises the qualifying threshold for the defense from conduct the actor reasonably believes was “necessary,” to conduct the actor reasonably believes was certain to avoid the harm. To move from a standard of reasonable belief in the necessity of engaging in the prohibited act to one requiring belief that the act will actually avoid the harm is to court abolishment of the defense altogether:
Finally, many commentators have had difficulty with the concept of necessity [ (or choice of evils) ] because of the possibility-of unforeseeable changes in the perilous situation. For instance, if a number of passengers are thrown overboard from a ship to save a much larger number of persons, there is really no way for the actors to foresee the exact moment when a rescue ship may arrive. There is always the chance that help will arrive in time to make the emergency action unnecessary. Such objections, however, fail to take account of the fact that other defenses which are predicated on a threat to person or property can take account only of the probability of harm. One can never guarantee that the uplifted knife will be plunged into the victim. If necessity is not admitted where there is a high degree of probability of disastrous consequences if action is not taken, then it can never be admitted. A person faced with such seeming necessity is and will remain in a personal moral quandary because of the person’s uncertainty. Our only point is that the threat of criminal punishment is unneeded here.
Commentary on
As to both the first and second considerations, an instruction phrased in terms of what “reasonable belief’ is “not,” and made a part of the defense instruction, implicitly places the defendant in the role normally assigned under the HPC to the prosecutor. The prosecutor is charged with proving “facts which negative the defense.” Commentary on
X.
Finally, the third proposed consideration, that is, that the harm or evil sought to be avoided was not imminent, is both repetitive and confusing. The beginning of the instruction, which generally tracks the statutory language of
Moreover, the third consideration will only tend to confuse the jury because that consideration is cast in the negative, that is, that the harm “was not imminent” (emphasis added), in contrast to the affirmative form of the same requirement in the earlier part of the instruction. Accordingly, the jury should not be instructed on the third consideration set forth by the majority.
XI.
In sum, the first and second considerations added to the jury instruction by the majority dictate requirements that “go beyond the factors denominated under the statute [and] impose additional burdens on a defendant, not authorized[.]” DeCastro,
For these reasons, I respectfully dissent.
. I do not find the cases cited by the majority to be persuasive since none of them squarely considered the appropriate instruction to he given a jury nor considered all the points raised in this dissent.
. In 1986, the Hawai'i legislature added subsection (3) to Hawai'i Revised Statutes (HRS) § 703-302 (1993), qualifying the choice of evils defense for charges of escape. In this subsection, the legislature added conditions similar to the "no alternatives” consideration. Hence, in order to assert a choice of evils defense, a defendant charged with violating
. The term "believes” in