*1 family unambigu IV. CONCLUSION court stated The “only hang findings that the ously in its oral today opinion emphasize that our We respect up” to “the difficult it harbored any way construed as an not should defense, posed by which question” Stocker’s parental expression approval of the con- of acknowledged might resolved [be] “have it precipitated prosecution the duct that courts,” the appellate centered on in the opin- our matter before us. Neither should slap the “miscon “proportionality” of the endorsement, any ion be viewed as an words, family In the court de duct.” other kind, by parents corporal pun- of the use slap the face” was termined that “a across It is common ishment of their children. “reasonably proportional” to Shane’s knowledge utility mention the to—not family hold that the “misconduct.” We punish- simple humanity corporal —of finding unsupported substantial court’s is subject parental tool is the ment as evidence. controversy within American so- considerable Nevertheless, equally ciety. obvious family upon evidence which permissibility corporal punish- finding derived court could have based its judgment ment reflects a societal falls testimony. regard, In this from Shane’s legitimate parameters and well within slapped him testified that Stocker Shane legislative policy-making. constitutional him failure to come to after as a result of his regard, legislature expressed has its this (a) commands,11 slap several worse, judgment, through for better or for (b) hand,” open hurt ... “with an “didn’t defense, parental discipline as enacted (c) little,” only hurt a left no mark or 703-309(1). wisdom, What, in its viewing Accordingly, even the evi- bruise. codified, free to amend or legislature has it is light most favorable to dence 703-309(1) repeal. long But as as HRS inescapable, prosecution, inference is state, remains the law of this we bound being legally justifiable by leg- use of force — it. to construe and enforce parental mandate —in the context of islative forgoing reasoning, Based on the we re- slap discipline, that the did not constitute conviction, judgment, guilty verse the unreasonable, excessive, disproportionate family sentence of the court. family force. The court’s view to the use of contrary deter- appears to have rested on its it, that,

mination on the record before mild—

slap to the face—no matter how matter, would, dispro- per as a se have been P.2d 410 Although portionate to misconduct. Shane’s Hawai‘i, Plaintiff-Appellee, STATE apparent danger to Shane at there was no time, family agree with the we cannot assessment, that, law, a as a matter of court’s MAUMALANGA, Malakai slap the face is not “reason- single, mild Defendant-Appellant. ably come proportional” to a child’s refusal to Al- repeatedly directed to do so. when No. 20146. Crouser, though, as this court noted Appeals of Hawai'i. Intermediate Court of legislature’s amendments to HRS 703-309(1) lee- accorded the courts Aug. 1998. way parameters permis- to determine the they parental discipline, did not eradi- sible prerogative apply parent’s mild

cate punish a child’s minor misconduct.

force connection, thing.” prosecution urges inasmuch as ful ... kind of In this unsworn, sufficiency post-verdict appeal the issue on court to consider 'Stocker's trial, by any family slapped evidence adduced at no statement court that "if I statement him, just is relevant to our deter- probably think it was witness made afterwards it was don’t —I discipline.... play- mination. It was more of a for—out of *2 Fletcher, Deputy

Rose Anne Public De- fender, brief, defendant-appellant. on the for Yuen, Deputy Prosecuting Attorney, Mark Honolulu, brief, City County on the plaintiff-appellee. WATANABE, ACOBA, KIRIMITSU, JJ. KIRIMITSU,

Opinion of the Court J.

I. INTRODUCTION Defendant-Appellant Malakai Maumalan- (Defendant) appeals ga the First Circuit Judgment Amended Court’s June For Conviction and Probation Sentence.1 below, forth we affirm. the reasons set 28, 1996, Defendant-Appellant Maumalanga’s on June and there- Malakai Sentence was filed (Defendant) Appeal Notice of indicates that he is Maumalanga's appeal we fore address will appealing May Judgment of Convic- though appealing were the June he tion and Probation Sentence. an judgment. amended Judgment Amended of Conviction and Probation Defendant unsuc- at Defendant. Because II. BACKGROUND cessfully attempted away, Defendant to drive 8, 1996, had On June Defendant been grab gun allegedly had no choice but to his working porter. Because at EM Tours as boys. and aim it at the Defendant then shot alleged anonymous phone call was re- *3 gun. to rounds from his off around four five company ceived the tour that it would be subsequently arrested and Defendant was evening, brought that Defendant two robbed Attempted charged with seven counts: Mur- guns day. Apparently, him that to work with (Count I); Attempt- Degree in the der First robbery no occurred. (Counts Degree II ed Murder in the Second 8, 1996, Defendant While at work on June III); Keep Firearm and Place to Loaded possible drive-by shooting at Ka- heard of a (Count IV);2 Threatening in and Terroristic then left at noa Park. Defendant work about VII). (Counts V, Degree and the First VI p.m. personally to drive home two of 10:00 granted, subsequently court park during The trial friends who were at the his part, for directed verdict Defendant’s motion drive-by shooting. dropping After off his thereby acquitted friends, gas and Defendant of Counts Defendant went to a station to station, gas VI and VII. put gas in car. at the his While coincidentally boys he Defendant saw who trial, specifically At Defendant raised a drive-by suspected were involved in the charge of to the of Place choice evils defense shooting. Firearm,3 Keep to Loaded Hawai'i Revised 134-6(c) (e) (1993).4 (HRS) boys §§ alleged Defendant that one of the Statutes and objection, in- gas pulled gun a and aimed it Over Defendant’s the court station out charge going get you bring Keep "We are robbed. Can 2. The Place to Loaded Firearm protection? Help following arose out of the facts: that Defen- some us out." pistol; dant carried a loaded that Defendant 134-6(c) (e) (1993) §§ state: 4.HRS so; (3) that had no license to do Defendant carrying while car it in his waistband Carrying or use of firearm in the commis- gas Hawaii Revised Statutes at the (HRS) station. See separate felony; place keep of a fire- sion arms; 6(c)(1993), n.4. firearms; penalty. 134— infra loaded (c) Except provided as in sections 134-5 and portion of clos- The relevant defense counsel's all firearms and ammunition shall ing argument is follows: business, possessor’s place confined to the believe, about, talk it’s Count Let’s residence, sojourn; provided or that it shall be position gun. that’s the carry lawful to unloaded firearms or ammuni- Actually, charged keep- ... is with not [h]e tion or both in an enclosed container from the ing right place. it in the place purchase purchaser’s place charge, Now the to this and this is Defense business, residence, sojourn, or or between asserting we choice of evils. what are business, places upon change place these residence, gun, Now had to have the he [Defendant] sojourn, places or between these or guns had to have those for a reason. Choice of following: place repair; target a and the a evils.... business; range; place a licensed dealer's police] protect ... don't [The [Defendant]. organized, scheduled firearms show or ex- them, happens, calls and what hibit; [Defendant] place or use a of formal hunter firearm people they up harassing instruction; end him because training police or or a station. go don’t want to let of their own beliefs rigidly con- "Enclosed container” means gang is a member. Either the commercially [Defendant] receptacle, structed or a manu- either, Pinoi-Boys po- case, neither the BBI or the gun equivalent factured or the thereof lice; choice, doesn't [Defendant] so has no he completely encloses the firearm. police protect have the him. He knows the him, (a) (b) Pinoi-Boys going buys (e) Any violating after so he person or subsection family. guns protect protect felony. Any guilty himself and his shall be of a class A violating by carrying possessing but to those He doesn't have choice have or this section guns possession; charged by carrying possessing in his but is not he a loaded firearm or or pistol possession. you with So have to remember loaded or unloaded or revolver without charged possession, provided but he license issued as in section 134—9 that he is not guilty felony. Any person charged place keep; and the shall be of a class B by carrying possessing why guns violating out of that this section reason he takes those firearm, pistol place an unloaded revolver, other than a house and take it down to his work felony. guilty up says, of a class C calls him and shall [his co-worker] structed the on the choice of evils de- must find that the “choice of evils” defense fense as follows: apply.5 does not It is a charged (Patterned 7.12) Jury Hawai'i Instruction legally justi-

the defendant’s conduct was added). (emphasis recognizes fied. The law the “choice of Subsequently, jury acquitted Defen- defense, evils” also referred to as the “ne- I, II, III, dant of Counts and V. The cessity” defense. guilty found Defendant of Count IV—Place justifies The “choice of evils” defense Keep Loaded Firearm. defendant’s conduct if the defendant rea- An Judgment Amended of Conviction and sonably compliance believed that Probation Sentence was entered on June law would have resulted in harm to *4 1996.6 Appeal Defendant’s Notice of himself or another sought than the harm untimely, having 26, September been filed on prevented by be defining the law the of- 1996. charged. fense In order for the “choice of evils” defense apply, four conditions must be satisfied. III. DISCUSSION

First, the must have reasonably defendant A. Jurisdiction legal believed that there was no alternative Second, available to him. Preliminarily, question there is a must have reasonably believed that jurisdiction in this case because Defendant sought prevented harm to be was immi- late, appeal fifty-nine days filed his notice of Third, nent or immediate. the defendant’s ninety days after the trial court entered conduct must have been de- judgment. its Pursuant to Hawaii Rules of signed prevent the threat of (HRAP) Appellate 4(b), Procedure Rule Fourth, greater harm. sought the harm criminal ap defendant must file a notice of greater avoided must have been than peal days “within entry 30 after the sought prevented by harm to be the law judgment appealed or order from.” Howev defining charged. the offense er, Supreme “[t]his court and the Hawaii Accordingly, prosecution if the has not Court have seen fit in criminal cases to relax proved beyond a filing reasonable doubt that the appeal deadline for a notice of justi- Ahlo, defendant’s legally justice conduct was not where so warrants.” v. 79 by defense, 385, 392, 690, fied the “choice of evils” then Hawai'i (App. 697 1995) you must guilty (quotation find the defendant not marks and citations omit ted). Keep Count IV: Place to Loaded light holdings, Firearm. of the above prosecution so, If you has done then based on a review of the circumstances in (2) proposed jury 5. Defendant’s by instruction stated as the harm or evil to be avoided follows: greater conduct was not than [Defendant's] It is a defense to the offense in Count IV of prevented by to be this law defin- Firearm, complaint, Keep Place to Loaded ing charged. the offense [Djefendant’s legally jus- that the conduct was Accordingly, prosecution prov- if the has not recognized tified. The law of ev- "choice beyond en a reasonable doubt that the defen- defense, "necessity” ils” also referred to as the legally justified by dant’s conduct was not defense. defense, you "choice of evils” then must find justifies The "choice of evils” defense guilty Keep the defendant not of Place to Load- conduct [D]efendant’s if the defendant reason- Firearm, prosecution ed in Count IV. If the has ably compliance believed that with the law so, [you] done then must find that “choice would have resulted in harm to himself apply. of evils” defense does not prevent- or another than the harm to be defining charged. ed the offense 28, original judgment 6. The was filed on March applica- The "choice of evils” defense is not disposition but it failed to indicate the prosecution proved beyond ble if the has Keep Count IV—Place to Loaded Firearm. Con- reasonable doubt that: sequently, judgment an amended was filed on [Defendant] did not June 1996 and indicated that Defendant was necessary that his conduct was in order to guilty Keep found of Count IV—Place to Loaded avoid an imminent harm or evil to himself or another; or Firearm. status the choice justice require 2. The current case, us the interests of comply in Hawai‘i. failure to evils that Defendant’s to hold 4(b) preclude his does not HRAP Rule (1993) provides, HRS Knight, appeal. right See State part, as follows: relevant 318, 323, P.2d Hawai'i despite com (extending jurisdiction failure to of evils. Conduct which Choice Ahlo, 4(b)); 79 Hawai'i Rule ply with HRAP to avoid actor believes same). (doing the P.2d at 697 evil to the actor or imminent harm or justifiable provided that: another is Jury B. Instructions (a) sought to be avoid- The harm or evil conviction of appeals his Defendant than ed such conduct In that Keep Firearm. Place to Loaded jury’s only challenges regard, Defendant charged[.] law justi- regarding choice of evils his instruction fication defense. 703-302(l)(a).7 “reasonably “believes” to mean defines review. Standard of believes.” instructions, *5 reviewing jury the stan “In (the the Hawai'i Penal Code Because whether, read and is when dard of review Code) the Model Penal Code is derived from whole, given the instructions as a considered 227, (MPC), Rep. No. erroneous, Hse. Comm. insufficient, Stand. in prejudicially Journal, 784, § 703-302 consistent, Maelega, 1971 House misleading.” v. or State (1995) nearly identical to Section 3.02 of 172, 176, P.2d 762 Hawai'i 907 80 MPC.8 citations (quotation marks and (c) (1993) is no time entirety: Under the circumstances there § 703-302 states in its

7. HRS courts; opportunity resort to the or (d) (1) which the actor Choice of evils. Conduct against pris- No force or violence is used necessary an imminent to be to avoid believes persons; personnel other innocent and on (e) or to another is harm or evil to the actor or proper promptly reports to the The actor justifiable provided that: a (a) when the actor has attained sought by authorities to be avoided The harm or evil safety position from the immediate threat. sought greater than that such conduct is (l)(b) (c) applicable in by defining Subsections are not prevented law the offense asserts, party and the charged; (b) because neither this case indicate, ap- defining section other law does not that either Neither the Code nor record (2) apply provides exceptions plies. or defenses does not the offense Subsection involved; asserts, dealing specific party situation and the record does not neither indicate, negli- was reckless or and (c) that Defendant justi- legislative purpose to exclude the gent bringing A Subsection about situation. plainly prose- otherwise apply fication claimed does not a not because this was not does appear. (2) escape. cution for negligent reckless or When the actor was (MPC) Penal Code 8. Section 3.02 of the Model requiring bringing a about the situation provides: appraising evils or in choice of harms or Generally: conduct, 3.02. Choice justifica- Section Justification the actor's for of Evils. in a this section is unavailable tion afforded to be Conduct that the actor believes prosecution for offense for which reckless- be, necessary [or a harm or evil to himself negligence, to avoid as the case suffices ness or justifiable, provided or to another is culpability. herself] to establish prosecution escape that: under sec- 710-1021, (a) sought to be avoided the harm or evil the defense tion 710-1020 or greater to be conduct is than that limited to an such available under this section is defining following prevented the offense consisting affirmative charged; and elements: threat, (b) (a) law express neither the Code nor other or The actor receives death, provides exceptions defenses bodily injury, implied, of substantial involved; attack; specific dealing situation or forcible sexual (b) proper prison Complaint authori- (c) justi- legislative purpose to exclude impossible the circum- either under ties is plainly ap- history does not otherwise fication claimed exists a of futile stances or there pear. complaints; Prior to the enactment of HRS to be avoided was than the (the State) 302(l)(a), the State of Hawai'i generated by harm or evil the crime com- followed the common law defense of “necessi- mitted.

ty” Marley, or choice of evils. State v. 147, 153, 81 Hawai'i 450, 471-72, Haw. (Acoba, J., (App.1996) P.2d concur- (1973).9 approach, Under the law common ring). applicable the choice of evils not defense is holding further We reiterated our in Keal- (the test): Marley three situations that, oha (1) Where there is a third alternative (1) above, respect available to defendants that in- does not person does not believe that it law, volve violation of the defendants are to commit a crime to avoid an justified violating the law.... imminent harm or evil to himself or others closely A required related element is following when one or more of the ais fact: that the harm to be immi- (a) A third alternative that did not in- nent. ... volve the commission of a crime was rea- (3) Thirdly, importantly, and most even sonably person; available to the

assuming arguendo alternative (b) The crime committed was not rea- courses of action were “unavailable” ... sonably designed actually avoid the defendants remain unentitled to the de- avoided; harm or evil “necessity” fense of because their actions (c) The harm or evil to be avoid- reasonably designed were not ed was not imminent when the prevent the threatened harm. committed the crime. (citations Id. at 509 P.2d at 1109 omit- Id. at 913 P.2d at 564-65. ted). *6 However, DeCastro, Judge Acoba disa- Following § the enactment of HRS greed application three-part with the 302, Kealoha, this court State v. 9 Haw. Marley opinion, test because in his “the com- 115, (1992) App. 826 P.2d 884 believed that requirements mon law set forth in Kealoha Marley applicable “the [was] rationale Marley express [and conflict ] lan- (2).” 703-302(1), § construction of HRS Id. 155, § guage of HRS 703-302.” Id. at 118, essentially at 826 P.2d at 886. we Instead, pursuant P.2d to the ex- adopted three-part Marley pur- the for test press 703-302(l)(a), § language of HRS (2). poses construing 703-302(1), § HRS Judge Acoba reasoned that Id. justification the defense is satisfied when following factors are established: Subsequently, in we reaffirmed our (1) (2) reasonably defendant believes that, pur- decision in Kealoha and surmised (3) necessary conduct is to avoid harm or 703-302(l)(a), § suant to HRS (4) evil to the actor or another which is justification or choice of evils (5) imminent, and the harm or evil applicable defense is not when one or both than avoided the violative following requirements is not satis- conduct. (1) fied: believed Id. necessary that was to commit the crime to avoid an imminent harm or him- evil to Defendant now asks us to revisit our hold- (2) others; ings self or to the harm or evil in Kealoha and on the basis DeCastro (2) Code) (the negligent When the actor was reckless or Hawai’i Penal Code’s version of the bringing requiring about the situation choice of evils defense and the MPC's version is appraising choice of harms or evils or in necessity requires imminency. that the Code an element of conduct, justifica- his [or her] for tion afforded prosecution this Section is unavailable in a Marley, 9. State v. 54 Haw. 509 P.2d 1095 any for offense for which reckless- (1973) shortly was decided after the enactment of be, negligence, ness or as the case suffices However, §HRS 703-302. the facts of the case culpability. to establish enactment, prior Marley occurred thus the (Official 1962) (asterisk §MPC 3.02 Draft omit- § court made no mention of HRS 703-302. ted). The substantial difference between the preserve and all words of expand give or add to will force to improperly that these cases Penal statutes are to be legislature the statute. requirements set forth 703-302(l)(a). the strict strictly construed. in HRS permit the court construction rule does intent, require the holdings ignore legislative Kealoha nor our 3. We reaffirm reject that construction that best court to and DeCastro clarification. design the statute harmonizes with the in Kealoha and DeCastro Our decisions sought to be achieved. or the end general principles of stat- consistent with Mitsuda, 37, 40-41, 86 Hawai'i State v. rule utory as well as the Code’s construction added) (emphasis P.2d 352-53 Therefore, reject any we construction. (citation go be- argument that Kealoha and DeCastro yond scope permissible construction. b. principles, Based on the aforementioned a. following light make the observations. we 701-102(2) provides HRS holdings in of our Kealoha govern the provisions of this Code “[t]he justifica in Hawaii on a choice of evils law any punishment for of- of and construction governed by 703- tion defense is still committed after the

fense set forth herein 302(l)(a): (1) must defendant date, as the construction and effective as well that it was to commit the prosecution to a application of imminent harm or evil to crime to avoid an for such an offense.” others; the harm or evil himself or provides further sought to be avoided was than follows: generated by commit harm or evil the crime 703-302(l)(a); see also DeCas ted. HRS

Principles provi- The of construction. tro, Hawai'i at 913 P.2d at 564. cannot be extended sions of this Code provided analogy to create crimes not so as language 703-302 was of HRS herein; however, promote for .in order objective in general order intended to law, objects justice and all effect ultimate or factfinder to be the for given genuine provisions its shall be determining whether decision-maker construction, according import to the fair justified. The com choice of evils defense is *7 words, sense, their usual in the taken in of states, mentary in 703-302 relevant context, connection with the ref- part: purpose provision. the erence to the of matter, with all of its ramifica- The whole added.) Thus, (Emphasis weighed by the court and the tions is to be conjunction [(pur- in “read jury in the same manner as criminal Code) ], to assure poses of this is intended proceeding. conduct defendant’s If by the this Code will be construed necessary, one evil was not was not if way in such a as to effectuate courts other, greater than the if defendant Commentary purposes law.” declared of the intelli- exceeded the reasonable bounds of to HRS 701-104. morality, gence and defendant guided by following princi- are also We conduct not- convicted for defendant’s ples statutory withstanding attempts of construction: the defendant’s justify the actions. starting point statutory construc- defendant’s have had Finally, many commentators legislative intent tion is to determine concept necessity be- difficulty It with the language of the statute itself. from the of possibility statutory cause is a cardinal rule of construction of of unforeseeable For changes perilous situation. give effect to all that courts are bound to ,no clause, instance, statute, passengers if a number of parts of a ship to save a sentence, thrown overboard from shall be construed as or word larger persons, there is insignificant if a con- much number of superfluous, void or really way for the actors to foresee legitimately which no struction can be found exact ship may 394, 409-10, moment when a rescue Bailey, 444 U.S. 100 S.Ct. (1980) (“While always arrive. There is the chance that 62 L.Ed.2d 575 the defense of help will arrive in time to make the emer- duress covered the situation where the coer- gency unnecessary. objec- action cion had Such its source the actions of other tions, however, beings, necessity, fail to take human the defense account of the of or evils, traditionally fact choice of predi- that other defenses which are covered the situ- physical beyond ation where person property cated on a threat to forces the ac- can only illegal take tor’s control rendered probability account of the conduct of evils.”) lesser of two A harm. natural and common guarantee One can never that the “necessary,” definition to the uplifted knife term plunged will be into the vic- defense, context of a of necessity tim. If choice evils is that “if is not admitted where reasonable, there high legal was a degree probability there is a alternative to law, violating a chance both to consequences disastrous refuse to action is -not taken, do the criminal act and then it can also to avoid the never be admitted. A harm,” necessity. threatened then there seeming faced with is no such (citation Id. at quota- S.Ct. 624 personal is and will remain in a moral omitted). Thus, by tion marks quandary having jury person’s because of the uncer- presence legal consider the tainty. a third alterna- point Our is that the threat of express tive does not add punishment language to the criminal unneeded here. statute; helps instead it define and con- added) (internal (Emphases quotation marks strue necessary. whether an action is See and footnote (Tentative generally §MPC 3.02 at 10 Draft holdings Our in Kealoha and DeCas- 1958) (“Questions No. immediacy and of recognize difficulty tro concept course, bearing, alternatives have on the of when an actor believes his genuineness necessity, of a belief as well “necessary her conduct to be to avoid an negligence on the actor’s recklessness or imminent harm or evil to the actor or to material.”). when either is simply pro another.” our case law (2), As to consideration interpreting vides considerations 302(l)(a) nothing mentions about the defen- statute; requirement they first of the do not being “reasonably designed” dant’s actions create elements require which add to the Nevertheless, avoid a harm or evil. 703-302(l)(a). ments of HRS The consid “reasonably designed” goes question erations for the first (i.e., degree degree the nature and statute are as follows: whether a third crime committed the defendant in relation alternative, that did not involve the commis degree to the nature and of the harm or evil crime, sion of a available to prevented). This consideration defendant; whether the crime com does not add to the statute because an ex- reasonably designed mitted was not to actu press requirement §of is that *8 ally avoid the harm or evil to be by “[t]he harm or evil to be avoided (3) avoided; and whether the harm or evil greater such conduct is than that sought to be avoided was imminent when prevented by defining the law the offense committed the crime. ' charged[.]” 81 Hawai'i at 913 P.2d at 564-65. (3) Finally, consideration articulates the (1), although As to consideration the stat- imminency any- element of and does add language ute does not include a third about thing requirements of HRS alternative, legal it also does not add to the 302(l)(a) specifically the statute re- way defining statute because it is another of quires perceived by that the harm or evil reasonably whether a defendant believed it defendant be imminent. to commit a crime in order to recognized Even the drafters of the MPC avoid harm to himself or others. A choice of these aforementioned considerations: exactly says evils defense is what it de-—a position choosing fendant must be in a [T]he formulation makes the actor’s be- necessity (assuming between two evils. See United States v. lief in the sufficient a (to others), evils) danger or personal oneself the crime can as a unless valid choice permit a selection recklessly negligently, in which does not or crisis committed solutions, negligence some of among as several case recklessness or from which Questions imme- Ac- suffices. involve criminal acts. which do not bearing, alternatives have in diacy cordingly, and defense can be raised course, in genuineness on the that deal with harms or evils situations belief the actor’s reck- necessity, as well as on readily apparent recognizable are and negligence either is mate- when lessness persons. The defense can- to reasonable necessity suffices Not even actual rial. justify permitted acts taken to not be in its exis- the actor acted on belief unless speculative and uncertain dan- foreclose draft, tence; the formulation under application gers, limited in and is therefore necessity. by act accident from one cannot of harm directed at the avoidance to acts (Tentative occur. Draft No. that is certain to 3.02 at 10 MPC 1958) (Tentative un- Draft No. 8 remained Furthermore, actor must draft) (cited part changed in final MPC its chosen was neces- believe that the conduct (Off. Commentaries, Draft and Vol. at sary to avoid the threatened Comm.1962)). Rev. real, harm must be or evil. Because the sure, the “common law” consider-

To be imagined, speculative, or non- and not an do not make ations of Kealoha and DeCastro harm, taken to avoid imminent the actions prevail on more for a defendant difficult support a belief the harm must reasonable defense. The considerations a choice of evils that the actions would be ef- or inference They just do not are that —considerations. im- avoiding alleviating fective to a choice of evils add additional elements pending harm. they merely interpreta- defense because (citations at 808-09 Id. 498 A.2d or court guidelines to assist

tional on these aforementioned consider- Based validity a choice of evils determining the ations, the court held that: defense. then, order, In to be entitled to instruc-

c. justification a defense to a crime tion on charged, offer evidence the actor must first noteworthy that the ex- also find it We that will show: press set forth Kealoha and considerations (1) five are in accord with least actor was faced with a clear DeCastro that the harm, jurisdictions. other Commonwealth imminent not one which is de- speculative; Pa. 498 A.2d Capitolo, 508 batable or (1985), Pennsylvania court was faced with (2) reasonably ex- that the actor could justification statute that re- an MPC-based pect would be effec- that the actor’s actions liability for criminal lieves a defendant of harm; avoiding tive in such conduct conduct if the actor believed legal alternative there is no necessary to avoid a harm or evil to to be harm; abating effective in which will be another, “the harm or himself or to sought to be avoided such conduct evil Legislature that the has not acted greater than that preclude the defense a clear and delib- charged[.]” regarding at issue. erate choice the values Ann. and Offenses Pa. Cons.Stat. Crimes *9 (1983). § 503 Id. at 809. Pennsylvania court com- Pennsylvania apparently felt The court

mented that: wording express of its statute did however, adequately compelling con- necessity, not cover some of does

The defense a choice of evils defense. courses siderations of not arise from a “choice” of several statutory adding to a actions; a real without elements instead it is based on defense, articulated consider- only by justification an emergency. It asserted can be which, present, would defeat a crisis ations when confronted with such actor who is justification Senay prevented defining defense. Accord v. Com be the law the of- monwealth, 259, (Ky.1983) charged. fense S.W.2d (expanding Kentucky’s MPC-based choice of In order for the “choice of evils” defense evils statute to include common law elements apply, to four conditions must be satisfied. present Kentucky First, that were not in the stat reasonably must have defendant ute); O’Brien, 587, v. State 132 N.H. legal believed that there was no alternative (1989) 582, (reasoning Second, A.2d 583-84 that New available to him. Hampshire’s up MPC-based statute sets reasonably must have believed that balancing test wherein “the desire or need to sought prevented harm to be was immi- present outweigh avoid the harm must Third, nent or immediate. the defendant’s sought prevented,” to be and therefore conduct must have been de- expanded the statute to include the common signed actually prevent to the threat of law element that there must no Fourth, be lawful greater sought harm. the harm alternative); People Brandyberry, see also v. greater be must have avoided been than (in (Colo.Ct.App.1990) 677-79 the harm quiring common into law elements not articu charged. the offense lated Colorado’s MPC-based statute for Accordingly, prosecution if the has not purposes determining whether a in proved beyond a reasonable doubt that the Smith, given); struction should be State v. legally justi- defendant’s conduct was not (exam 104, 105 (Mo.Ct.App.1994) 884 S.W.2d defense, fied “choice evils” then ining expressed in common law elements not you guilty must find the defendant not MPC-based statute to determine Keep Place Count IV: Loaded Firearm. necessity justification defense instruction so, prosecution you If the has done then jury).10 should be submitted to the must find that the “choice of evils” defense apply. does not Accordingly, holdings we reaffirm our added.) (Emphasis Kealoha and DeCastro.

The instruction on the choice of evils 4. The choice evils instruction was justification complies defense with the lan- erroneous; however, a vacatur 703-302(l)(a), guage of HRS as well as our required. conviction is not holdings in Kealoha and extent that the first and elements third fol- a. low the case law of Kealoha and DeCastro case, pat instruction (i.e., available, no alternative 7.12, Jury terned after Hawaii Instruction crime committed was not de- as follows: stated signed avoid the harm or evil avoided), sought to be and the second and charged It is a express language fourth elements track justi- legally the defendant’s conduct was (i.e., imminent recognizes fied. The law the “choice of harm, the harm or evil defense, evils” also referred to as the “ne- than that avoided is cessity” defense. prevented). justifies The “choice of evils” defense Nevertheless, defendant’s conduct if the defendant rea- we find error with the in- sonably compliance struction because it fails to articulate that the believed in Kealoha law would have resulted harm to “common law” elements set forth pur- the harm are considerations for himself or another than DeCastro Additionally, jurisdictions (applying there are which do common law choice of evils defense statute); applicable codify an a choice of evils or defense. elements in the absence of jurisdictions, appear Crawford, 308 Md. 521 A.2d those the courts to follow (1987) (applying the common law elements for a choice of evils the common law provide expanded analysis of a stat defense which choice of evils defense absence (R.I. ute); determining Champa, is excused State v. 494 A.2d whether defendant *10 Metters, 1985) liability. People (quoting common law choice of evils de from App.4th See v. Cal. 1489, statute). applicable Cal.Rptr.2d fense in the absence of an whole record shows it to be requirement of the statute. which the poses of the first context, question words, In that the real not first entitled. In the instruction does other statutory require- whether there is a reasonable forth the becomes expressly set Instead, might possibility that error have contribut- pursuant to 703-302. ments statutory If there is such a reason- incorporate both re- ed to conviction. attempts it case, in then the possibility able a criminal with- quirements and case law considerations beyond error is not harmless a reasonable an distinguishing between the two. Such out doubt, judgment and the of conviction on the law.11 incorporation misstates have been based must be set which the law would be An accurate reflection of aside. that, acknowledge pursuant to HRS to first 703-302(l)(a), the defendant is conduct Loa, 350, 926 P.2d 83 Hawai'i justifiable engages in (citation omitted), reconsideration to be rea- conduct which he or she believes (1996). denied, 83 Hawai'i 928 P.2d 39 sonably to avoid an imminent Although jury instruction in this another, harm or evil to the actor or to accurately did not reflect the law on case harm or evil to be avoided Hawaii, such an error does choice of evils is than that such conduct require not a reversal of Defendant’s convic defining the offense tion. 703-302(l)(a). charged. HRS n

Thereafter, case, should advise presented the instruction In Defendant one ar- this gument for a choice of evils that his co-worker asked him to defense: (1) above, respect bring “protection” to work because an some that it person does not anonymous telephone call indicated that the necessary to commit a crime to avoid an day. company would be robbed that See n.4. imminent harm or to himself or others evil following a when one or more of the fact: surrounding the facts the Place (a) in- A third alternative that did not Keep charge out Loaded Firearm arose of a crime was rea- volve commission gun in possession Defendant’s of a loaded his sonably person; available to the sitting gas while his car at a waistband (b) The crime committed was not rea- Thus, even if we were to station. See n.3. sonably designed avoid the accept that Defendant’s reason for car- avoided; of evil rying gun day a loaded was because (c) or evil to be avoid- The harm anonymous tip workplace would that his imminent when the ed was not robbed, logically that he it does follow crime. committed the carry gun had no choice but to a loaded to a away gas which was located from his station 81 Hawai'i at carry- place. If Defendant’s reason for work 564-65. true, gun ing a loaded were then he should b. gun that was have left his at the location light presumptive- supposed to have been robbed. Erroneous instructions ly ground charge, Defendant’s harmful and are a for reversal the factual basis bring affirmatively appears argument choice unless it from the that he had no but gun far As as a whole that the error was not a loaded to work is too removed. record such, possi- there is no prejudicial. Error is not to be viewed we believe reasonable bility purely in the ab- that the erroneous instruction con- isolation and considered light Keep of Place to stract. It must be examined tributed to his conviction proceedings given the effect Loaded Firearm.12 the entire saying 12. We are not that as a matter of law the 11. To the extent that we have found error given. A defen- case, instruction should not have been given we declare the instruction every dant is "entitled to an instruction on de- Jury to be an erroneous Hawaii Instruction 7.12 theory having any support in fense or of defense statement of the law. evidence, provided sup- such evidence would *11 ACOBA, J., concurring part jury improp- 5. The instruction did not dissenting part. erly place proving the burden the on defense Defendant. majority’s I concur with the conclusion that the choice of evils instruction of the first argues Defendant also that the four condi- (the court) circuit court was erroneous be- jury “im- tions set forth instructions expressly forth the cause did set statu- properly placed proving the burden of the tory elements of that defense contained by implying defense on the defendant that (HRS) § Hawai'i Revised Statutes ‘question the burden was a of fact’ to be 302(l)(a) (1993). I concur that the also erro- words, by jury.” the In “[t]he decided other neous instruction was harmless De- because jury result of a ‘shifted [the instruction] is (De- fendant-Appellant Maumalanga Malakai essence, ‘given In burden.’ was fendant) present any did not evidence to opportunity reject to the defense as less than satisfy statutory elements of the defense. put credible’ before the state was to test However, regard majority’s I disproving beyond the defense a reason- proposed addition of common-law “consider- long-standing able doubt.” it is a ations” to the elements choice of evils rule in Hawai'i that unwise, defense as unwarranted and with all justification, [w]here the defense is once respect, majori- disagree due must fact, facts, evidence of a or set of which ty’s formulation of that instruction. liability negatives penal has intro- been

duced, prosecution thq burden is on I. disprove the facts that have intro- been prove negativing duced or to facts “[cjonduct states that justification beyond defense and to do so which the actor believes is to avoid reasonable doubt. an imminent harm or evil to the actor or to justified provided another is ... Straub, 435, 444, Haw.App. by harm or evil avoided such (1993) (citations omitted). P.2d than that conduct is complained the “result” of Defen- prevented by exactly dant is what is mandated law: charged[.]” language, In contrast to this first has burden court the choice of instructed on put nega- into evidence a set of facts which evils defense as follows: and, penal liability accomplished, tive once In order for the “choice of evils” defense disprove the burden shifts to the State to apply, four conditions must be satisfied. beyond id. a reasonable doubt. See First, defendant must have such, argument As Defendant’s is without legal believed that there was no alternative merit. Second, the defendant available to him.

must have believed that was immi- IV. CONCLUSION Third, nent or immediate. the defendant’s conclusion, holdings we reaffirm our reasonably de- conduct must have been and, therefore, Kealoha and DeCastro affirm signed actually prevent the threat of Fourth, Judgment, the June 1996 Amended Con- harm. the harm greater than Probation be avoided must have been viction and Sentence. port jury, that issue Our conclusion that there was no reasonable the consideration of weak, no matter how inconclusive or unsatisfac- possibility that the erroneous instruction Robinson, tory the evidence be." State v. case contributed to Defendant’s in this conviction 304, 313-14, Hawai'i jury. upon is based the evidence submitted to the (1996) (emphasis original) (quotation marks It is not a conclusion of law Defendant standard, Given this De- citation not entitled to a choice of evils instruction. fendant was entitled to an instruction on a choice of evils defense. *12 by presented to because there was no evidence

the harm that Defendant believed it was defining charged. demonstrate law 703-302(l)(a) requires, necessary, as HRS added.) (Emphases carry guns him he to one of with when out, majority points As the the second and Tours, EM in order an imminent left to avoid given by the court were fourth elements robbery EM Defendant did not Tours. 703-302(l)(a), from and the derived HRS testify why gun him as to he took one with this court’s first and third elements followed Tours, gun when he left EM and left one Kealoha, prior holdings in v. 9 Haw. State Wagen during with at the EM Tours office App. P.2d that time. (App. 81 Hawai'i 913 P.2d 558 1996). majority agree I that with appears appeal, Defendant to offer a On instruction was erroneous because court’s theory new about his choice of evils defense: statutory “expressly set forth the did not evidence that: both [Defen- There was pursuant requirements to HRS 703-302.” by family and his had been harassed dant] Majority opinion at 419-20. Pinoy Gang; police had failed to circumstances; help under render these II. and, knew that a member [Defendant] majority’s I also concur with the conclusion Pinoy Gang had shot someone in a that the error was harmless. Because De- park drive-by shooting.... in a acquitted charges Attempt- fendant was juror A reasonable could have found that Degree, Attempted ed Murder First “plain language” [HRS under the Degree, Murder in the and Terroris- Second [Defendant], light ... in of the above 302] only Threatening Degree, in the First tic facts, reasonably necessary believed it to appeal conviction on is Defendant’s conviction carry handgun protect in him- order to 134-6(c) Firearms, Keep for Place to HRS danger self from that could befall him at (1993). 134-6(c) provides, in relevant by Pinoy Gang. time a member of the matter, part, general that “all firearms harm to be avoided this case pos- and ammunition shall be confined to the death, was which is [Defendant’s] business, residence, place sessor’s so- general than the to be avoid- journ[.]” explaining In of evils the choice by ed the offense of Place Defendant, allegedly by defense coun- faced Keep Firearms. closing argument that “the sel asserted However, Defendant never testified that why guns only reason those [Defendant took] gun him left EM he took the with when he [took them] out of that house and down to his protect anyone Tours order himself or place Taylor [Wagen (Wag- work is because Pinoy Gang. else from a member of the en), says, up calls him and We co-worker] Pinoy Although Defendant testified that going get you bring robbed. Can ” Gang “harassing” him members had been (Emphasis protection? Help some us out.’ family, and his and Defendant knew that a added.) argued It then that the harm was gang member of that had shot someone from Defendant to avoid was “immediate” gang Defendant’s former earlier in the eve- robbery “could because the of EM Tours ning, testimony by there is no Defendant happened anytime night. it was have So gun him that he took the when he left throughout night[.]” immediate De- EM Tours because he was scared reiterated that Defendant “had fense counsel Pinoy Gang shooting, the earlier guns for one reason [sic] those gun protect thus needed the himself. [Wagen] night, was because [which] place bring asked him to them to the work testimony, there the absence of such protect them.” jury would be no basis for the to have found argument that Defendant believed it was This was the sole Defendant carry gun left EM respect made to the to the choice of when he such, to avoid imminent harm in- evils defense. As Tours order fact, rejected Pinoy Gang. In properly this defense flicted Defendant could have satisfy element of the of- [he] that he had the which would “remember[edJ testified added.) However, (Emphasis appar- gun attempting when he was fense. [him]” on gasoline given advising the ently someone at the station no instruction was hide from suspected involved in the earli- of the limitation set forth whom he *13 added.) 703-302(2). Plaintiff-Appellee § shooting. (Emphasis This testi- er (the State) mony argued now that Defen- Hawai'i that Defen- belies assertion intentionally knowingly. gun protection him acted or Be- dant took the with dant Pinoy Gang, since Defendant did testified he did not remem- from cause Defendant gun gun had the he had the until the incident at the not even “remember” he ber station, from long gasoline him until after he left the EM Tours there was evidence juror might office. which a find Defendant was bringing precipitating in reckless about the testimony presented, the effect Given the situation. a “reckless” state of mind of the erroneous instruction was harmless. satisfy the would have been sufficient to state given if Even the court had instruction element, have of mind and the court should § language of which tracked the HRS 703- jury in instructed the accordance with HRS 302(l)(a), there was no evidence to demon- 703-302(2). § carrying the strate that Defendant believed away gun him he was from EM while harm

Tours would avoid either the imminent IV. robbery of a to EM Tours or the imminent stated, previously I cannot concur that As Pinoy Gang. posed members of the jury of evils de- instruction on the choice 703-302(l)(a) § in fense set forth HRS III. common-law “considerations.” should include note, further, majority beyond plain lan- proceeds limita- The that there are three jury guage that the defense set forth of the statute and directs tions on the choice of evils 703-302(1), additional “consider- in which should be con- should be instructed on HRS purposes first giving an instruc- ations for sidered a trial court as follows: [HRS ]” tion on choice of evils. Under HRS 703- 302(l)(b), the court is not to instruct the person does not [A] on the defense if “the Penal Code [Hawai'i crime to avoid it is to commit a (HPC) defining the offense ] [ ] or other law evil to himself [or an imminent harm or provides exceptions dealing with or defenses when one or more of the herself] or others Similarly, specific involved[.]” situation following is a fact: legis-^ given where “[a] no instruction (a) in- A alternative that did not third justification purpose lative to exclude rea- the commission of a crime was volve plainly appear[s].” ... claimed person; sonably available to the 302(l)(e). (b) not rea- The crime committed was limitation, The third contained designed actually avoid the sonably 703-302(2), if provides that the state of avoided; or harm or evil charged either reck- mind for the offense (c) be avoid- The harm or evil negligent, the court must instruct the less or when the ed was not imminent is not that the choice of evils defense the crime. committed if that the defendant available finds bringing negligent or was reckless Majority 976 P.2d at 420 opinion at evils, requiring a choice of about the situation added) DeCastro, (quoting Ha (emphases evaluating negligent in reckless or 564-65). at this 913 P.2d wai'i necessity or her conduct. for his manner, majority injects statuto into the ele case, ry of the defense additional given for the definition In this the instruction “ ‘common law* for ments derived from Keep Place to Pistol or Revolver offense of arid DeCastro.” “intentionally, knowingly, reck- mulation set forth Kealoha set forth view, my at 418. In Id. at the alternative states of mind lessly” as approach generally ap- unwarranted for sever restrictions as were believed propriate by al reasons.1 the drafters of the HPC have already incorporated through been “numer- V. safeguards” ous in the statute: The Kealoha and DeCastro formulations of safeguards are numerous built into [TJhere they longer apply the defense no danger causing 703-302. The [HRS] superseded were was when HPC necessity choosing between evils adopted. Following adoption of the HPC Moreover, must be imminent.' subsection express language [HPC] “the (2) provides of choos- controlling.” 81 Hawai'i at ing between harms or evils results from (concurring opinion). 913 P.2d at 566 negligence, the defendant’s recklessness or *14 prosecu- the defense is not in a available Second, provi- our construction of HPC tion of offense for which recklessness grounded in sions must be the words used. be, negligence, as the case suffices justice promote order to “[I]n and effect the for conviction. law, objects provi- of the all of the [HPC’s] construction, given genuine sions shall be It no defense under this section that according words, import to the fair the thought compliance with the sense, taken in their usual in connection with unwise; legislative statute immoral or context, pur- and with reference to the particular decision to make conduct crimi- pose provision.” § 701-104 HRS given great weight. nal is to be (1993). respect, ap- all due I With 703-302, Commentary § on HRS at 53. pending common-law “considerations” to the governing statute takes us far afield from the beyond requirements even § proposition Construing of HRS 701-104. imminence, necessity, harm, and and using the statute as written and as an aid negligence exception, the recklessness or thereto, commentary § to HRS 703-302 (1) specific .excep- defense is not available interpretation best harmonizes our falling purview tions otherwise within the intent of the drafters of the HPC. the defense are included within the definition (2) offense, legislative purpose of an Further, legisla- it were the intent of the exclude the defense exists. See HRS 703- incorporate ture to additional considerations 302(l)(b) (c). and The HPC thus includes limiting defense, applicability safeguards” against improvi- “numerous its so, could have I done and believe it would Commentary dent use. on HRS (3) have done so as it did in subsection at 53. HRS 703-3022 connection with the of- escape. fense of Finally, regard pro do not the additions posed by majority The effect of the considerations is to fur- as wise. This court purpose ther restrict the use of the defense. See has observed that of an in “[t]he ostensibly guidance jury discussion This is based struction is to furnish infra. upon majority’s deliberations, language that the belief their and to aid them in arriv “general objective.” ing proper McKeague of HRS 703-302 is at a verdict.” v. Tal Majority 102, bert, 646, 657, opinion 898, at Haw.App. 976 P.2d at 416. by majority charged violating 1. I §§ do not find the cases cited dant HRS persuasive squarely alia, be since none of them con- prove, or -1021 must inter that nei- appropriate given sidered the instruction to he prison ther the authorities nor the courts were points nor considered all the raised in this escape. available as an alternative to Subsection dissent. legislature capable illustrates that the elements, incorporating specific limiting such as legislature the Hawai'i added subsec- requirement, a "no alternatives” if it chose to do (HRS) tion to Hawai'i Revised Statutes requirement so. fact that a The similar is not (1993), qualifying § 703-302 the choice of evils 703-302(1) expressly set forth indi- charges escape. defense for In this subsec- cates, my opinion, tion, that no such legislature added conditions similar to Hence, charged was intended for defendants with crimes the "no alternatives” consideration. defense, escape. order to assert choice of evils a defen- other than

HI (1983). exist; Accordingly, his in defendant’s “[i]n her] [and] [a] actions [or structions, judge reasonably designed prevent trial should inform the applicable (Emphasis as the law of the case the threatened harm.” added.) they may the facts in such a manner that The “two additional elements” cited added). (emphasis very misled.” Id. At the State are the elements included best, adding these considerations in a majority’s proposed instruction instruction on choice of evils will tend to first second considerations. jury. worst,

confuse and mislead At including such common-law considerations B. [statutory] ‘reasonably “redefines the be evident, equally isAs the considerations factor,” beyond power lieves’ our to do so. “merely interpretational guidelines,” are not at 81 Hawai'i P.2d at 566 majority P.2d (some opinion at (concurring opinion) quotation internal in fact since considerations are the basic marks citations law, pre-HPC elements the common defini- VI. tion of choice of evils defense from Keal- supplanted That oha. definition was majority maintains that its consider- 703-302(l)(a). However, guise under the ations additional “do not add elements to a *15 “reasonably of the element be- they choice of evils are lieves,” majority incorporates now that merely interpretational guidelines to assist a common formulation into the defini- law HPC Majority opinion or court.” at Consequently, in- tion defense. P.2d at 418. express struction clashes with the terms of 703-302(l)(a) and, therefore, § is not A. “merely interpretational.” Plainly, the “considerations” “addition- By requiring al that elements.” VII. additionally respect instructed “with to re- § quirement [of HRS that “a 703-302]” my In addition to overall concerns with the reasonably not it is does believe that instruction, majority’s spe- proposed have (emphasis commit a crime” to add- respect cific to each concerns ed) if of three “one or more” considerations three considerations. fact,” majority opinion “is a effect, consideration, places in The first (quoting at 420 at 153- Hawai'i adducing upon a the burden of defendant 564-65), majority P.2d at has “third evidence that there was no alterna- “reasonably further defined the term be- or, one, assuming tive” the existence lieves” law. this new as a matter Under “reasonably not avail- such alternative was instruction, any one of the consider- three Hence, able.” the first consideration adds an ations, “fact,” if established as deemed to is expressly element mandated the stat- not preclude finding of “reasonable belief’ and ute, applicability limits the thus thus the defense. use of thing argument to allow defense. It is one considerations, are ad- Of these three two on “third alternative” number of ditional that now must satisfied elements argument respect in final to alternatives already to in addition those defendant “necessary” if conduct element such al- 703-302(l)(a). imposed De- under HRS par- under present ternatives themselves spite majority’s assertion no ele- case; quite ticular circumstances of the added, being even ac- ments are the State thing another instruct the that such answering in knowledges its brief that disproved under evi- matters must be “interpret- Kealoha and DeCastro court jury may dence consider the de- before [HRS ] ed include two ad- part IX. fense. See discussion infra must be ditional elements that satisfied language Additionally, the order for the ‘choice of evils’ defense to commentary noticeably fail to apply[:] ... that a third its alternative harm, anything availability avoiding objective mention about of alter- rather than one of natives. This consideration is not noted as reasoned choice as HRS 703-302 would safeguards one of the “numerous built into appear require. Commentary [HRS ] 703-302[.]” on HRS Accordingly, seeming place upon commentary at 53. The *16 persons, really way there is no for the it, too, by ed because is not dictated actors to foresee the exact moment when a 703-302(l)(a). § ship may always rescue arrive. There is consideration, As with the first the second help the chance that will arrive in time to effectively requirement adds a not found emergency make the unnecessary. action justified commentary the text or in the to the however, objections, Such to take ac- fail DeCastro, section. See 81 Hawai’i at count the that other which fact defenses (concurring opinion). 913 P.2d at 566 predicated person on a threat Further, engenders second instruction property can only take account jury confusion in reconciling for the the stat- probability guar- harm. One can never utory requirement that the defendant be- uplifted antee that will be knife lieves his or her “necessary,” conduct was plunged into the victim. is If and the consideration that his or her conduct not admitted high degree where there is a “designed was not avoid the probability consequences disastrous added.) (Emphasis hand, harm.” On one taken, action is not then it can never be “necessary” the term ap- connotes conduct A admitted. faced with such seem- circumstances, propriate or suitable to the ing necessity is per- and will remain a directing jury thus to deliberate on quandary sonal per- moral because of the objectively

whether it was reasonable for a uncertainty. only son’s point Our is that defendant to believe that his or her conduct punishment the threat of criminal is un- appropriate or suitable under the cir- needed here. contrast, By cumstances. the words “actual- (em- ly Commentary 703-302, impart avoid” on reader the sense that at 54 added) (internal phasis marks, the conduct chosen quotation defendant must be cita- nearly tion, one certain or certain of success and footnote 703-300, 3. The term "believes” in HRS 703-302 legislature means was intended "reasonably incorporate believes." [person] See HRS a "reasonable standard.” (1993). definition, provided Supplemental This Commentary in HRS on HRS 703-300.

H3 emphasis places on imminent harm undue IX. requirement. that second consider- As to both the first and Moreover, consideration will ations, the third phrased terms an instruction “not,” jury because that consid- tend to confuse the and made what “reasonable belief’ is, instruction, negative, that implicitly eration is cast part (emphasis imminent” add- normally the harm “was not places defendant in the role ed), affirmative form of the in contrast to the assigned prosecutor. HPC to the under the part proving earlier prosecutor charged with same The jury Accordingly, the should not instruction. negative the defense.” Com- “facts which set on the third consideration mentary at 52. But the be instructed on HRS by majority. forth practicably which must three considerations prove disproved by defendant to his or very are those facts her “reasonable belief’ XI. negative evils de- the choice of which would sum, considerations the first and second legal al- both the existence fense. majority added to the instruction by a defen- ternatives to the action chosen “go beyond the requirements dictate of a belief in actual dant and the absence [and] under the statute factors denominated harm, which would be ex- avoidance of the defendant, impose burdens on additional prosecution’s burden to pected to be the Hawai'i at authorized[.]” instruction, are prove proposed under the (concurring opinion). 913 P.2d at 566 Consequently, I the defendant. shifted to unduly emphasizes The third consideration improperly the instruction also alters over the imminent element of the defense trial functions under the allocation of All considerations will elements. three other HPC. “inform confusing rather than applicable the law of the case as to X. they may manner that in such a to the facts consideration, Finally, proposed third Haw.App. at McKeague, 3 misled.” not be is, sought to be that the harm or evil imminent, repetitive is both avoided was not reasons, respectfully dissent. For these confusing. beginning of the instruc- statutory tion, generally tracks which *17 pre-

language of HRS considerations, provides listing

cedes the engaged “in have the defendant must to be rea- which he or she believes

conduct imminent avoid an

sonably such, requirement of As harm or evil.” imminence will be communicated Hawai'i, Plaintiff-Appellee, STATE of another instruction and there is no need for sought to be reiterating that the harm or evil imminent. The drafters must be avoided Defendant-Appellant. PEREZ, Ramon (Official (MPC) § 3.02 Penal Code Model No. 20880. 1962) did Draft and Revised Comments or evil be require that the harm expressly Appeals of Hawai'i. Intermediate Court “[sjuch thought that because it was imminent 23, 1998. Oct. emphasizes ingre- unduly one at the judgment that is called for dient Nov. Granted Certiorari just important.” MPC expense of others Hawai’i at 17. While the comment 3.02 re- an imminence legislature has included statute, an of evils

quirement in the choice again refers jury instruction which

additional notes demonstrating defendant the burden cer- “[i]f the defendant’s conduct was not tainty regarding of success the chosen con- necessary, if one evil was not than duct, the second consideration raises the other, if the defendant exceeded the rea- qualifying threshold for the defense from intelligence morality, sonable bounds of conduct the actor believes was be convicted for the de- “necessary,” to conduct the actor notwithstanding fendant’s conduct the defen- believes was certain to avoid the harm. To attempts justify dant’s the defendant’s Hence, move from a standard of actions.” Id. reasonable belief in contrast to the ma- instruction, jority’s necessity engaging prohibited the statute does not indi- cate that the requiring choice of evils defense should act to one belief that the act will fail the defendant had a actually third alternative avoid the harm is to court abolish- available, long so as a defendant’s belief that altogether: ment of the defense necessary, objec- the conduct chosen was Finally, many commentators have had tively reasonable.3 (or difficulty concept [ evils) choice of possibility- ] because of the VIII. changes of unforeseeable perilous view, consideration, my the second re- instance, situation. For if a number of garding whether the defendant’s act was passengers are thrown overboard from a “reasonably designed avoid the ship larger save much number of evil[,]” [imminent] also is unwarrant-