Opinion
SCWC-20-0000485
03-15-2023
In the INTEREST OF DM
Phyllis J. Hironaka, Honolulu, for petitioner. Brian R. Vincent, for respondent.
Phyllis J. Hironaka, Honolulu, for petitioner.
Brian R. Vincent, for respondent.
McKENNA, WILSON, AND EDDINS, JJ.; AND NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY EDDINS, J.
[152 Hawai'i 471]
A minor stabbed another minor. The State prosecuted, and the minor, DM, argued self-defense.
[152 Hawai'i 472] The family court rejected his defense. It ruled the prosecution had proven attempted assault in the first degree beyond a reasonable doubt.
In Hawai‘i self-defense cases, the defendant's subjective belief drives an objective reasonableness standard. Factfinders wear the defendant's headset and experience the event from that reality. Then, from that perspective, the judge or jury evaluates the objective reasonableness of the defendant's subjective belief that self-protective force was necessary.
Here the family court inadequately assessed the circumstances from DM's perspective. The court also misapplied key self-defense elements: the use of deadly force and the duty to retreat.
Substantial evidence does not support DM's adjudication. We reverse.
I.
The State filed a petition that alleged DM violated Hawai‘i Revised Statutes (HRS) §§ 705-500 and 707-710, attempted assault in the first degree. After a bench trial, the family court adjudicated DM as charged.
A person commits attempted assault in the first degree if the person "intentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person's commission" of assault in the first degree, which is committed if the person "intentionally or knowingly causes serious bodily injury to another person." HRS §§ 705-500 (2014), 707-710 (2014).
DM contests the elemental facts. The factual circumstances are mostly undisputed.
After midnight in June 2019, a large group of ‘Ewa Beach teenagers socialized at One‘ula Beach Park (Hau Bush) in ‘Ewa Beach. Most drank alcohol. The interior lights from open car and truck doors lit up the pitch-black area.
DM and his cousin heard about the gathering on social media. The cousin drove to Hau Bush. DM did not know anyone there. Soon DM met some girls. As they talked, a shirtless teen (CW) obtruded. CW appeared "sketchy," so DM suggested he leave. CW left.
But soon CW returned. He harassed a girl who was talking with DM. CW called her "bitch" and "slut." DM stood up for her. Then CW challenged DM to fight. DM said he didn't want any problems and asked CW to leave. CW did not leave this time. CW asked DM where he was from. DM replied, Kalihi, and the two teens argued.
Then, things got physical. CW rushed DM. He punched DM several times. DM fought back. CW's friends and others jumped in, pulled CW off DM, and pushed DM away. CW's friends restrained and tried to reason with him. But CW didn't listen; he broke from his friends’ grasp.
Again, CW rushed and punched DM. He tackled DM to the ground. As before, DM fought back. The two wrestled and punched each other. Other teens entered the fray. One of CW's friends said he "grabbed" DM and "walked away with him." CW's friends pulled him off and away from DM. They held CW and tried to settle him down. For unknown reasons, other fights broke out. Hau Bush had turned "chaotic" and "rowdy."
The crowd closed in. DM did not see his cousin. To DM, "the whole ‘Ewa Beach" was there. DM darted to his cousin's car. He got his work knife and faced the crowd, a few feet from the car. Only about ten to fifteen seconds had gone by since he had been attacked. Holding his knife, DM warned: "Who like get stab?"
The crowd stopped or backed off, except CW. Despite his friends’ grip, he broke free, yet again. He launched into the air, tackling DM. DM never moved from his spot, next to the car.
CW landed atop DM. He unleashed a flurry of punches. DM held his arms over his face. Soon CW rolled off DM. DM had stabbed CW, once, in the abdomen. DM got up. He found his cousin and told him he had "accidentally" stabbed someone. The cousin quickly drove them away.
DM testified. He detailed the verbal and physical confrontations with CW. He described how CW rushed him the second time. They fought on the ground. Another teen
[152 Hawai'i 473] punched DM in the head. DM described this attack as being "side-blinded from somebody else." Then DM recounted, another person hit him: he "got punch[ed] again. And I was looking. I was tripping out ... [c]hoke people was getting nuts." DM was scared. "Like had a lot of people. I was getting whack. I was outnumbered."
DM dashed to his cousin's car and grabbed his work knife; it had a three to four-inch blade. He hoped the crowd would back off. DM stayed put, near his cousin's car. CW and other teens advanced: "[h]ad more boys coming to rush me." They were ten feet from him. DM warned: "Who like get stab?" DM did not want to hurt anybody. Instead, he wanted to "make them back away." They slowed or backed away, but not CW.
CW yelled "I no give a fuck if you have the knife" and propelled into the air, tackling DM. DM tried to "catch" or "wrap" CW. Then DM was on his back. Astride DM, CW threw several punches before rolling off him. DM had stabbed CW.
DM argued he lacked intent and acted in self-defense.
The family court adjudicated DM as a law violator. The State had proven the elements of attempted assault in the first degree.
The court rejected DM's defense. DM's use of deadly force was not objectively reasonable. DM could not stab CW "under the circumstances."
Findings of Fact (FOF) #41 reads:
41. While [DM] may have subjectively believed that such deadly force was necessary, the Court does not find that the amount of force used was objectively reasonable under the circumstances of this case, beginning and culminating with getting the knife from the vehicle, coming out of the vehicle instead of staying in the vehicle, making a threatening statement and ultimately resulting in [DM] stabbing [CW].
The court also found that DM's use of deadly force comprised not just the stabbing, but also the steps leading up to it: "retrieving the weapon from the vehicle, coming out of the vehicle with the weapon, making the threatening statement and ultimately using the weapon does constitute deadly force." Further, the court found that DM "could have waited in the vehicle or left the area with complete safety."
FOF #42 reads:
42. The mere brandishing and/or threat to cause death or serious bodily injury by the production of a weapon so long as the actor's intent is limited to creating an apprehension does not in and of itself constitute deadly force. However, retrieving the weapon from the vehicle, coming out of the vehicle with the weapon, making the threatening statement and ultimately using the weapon does constitute deadly force.
FOF #37 reads:
37. [DM] could have gone to the vehicle and instead of getting the knife, could have extricated himself from the situation if he stayed in the vehicle or he could have left the area but chose not to do so.
Conclusions of Law (COL) #12 reads, in part:
12. [DM] left the area to obtain a weapon, the knife, from a vehicle and returned and stated "who like get stabbed." The confrontation was broken up, but [DM] chose to return with the weapon, ultimately stabbing [CW]. [DM] could have waited in the vehicle or left the area with complete safety.
DM appealed. DM challenges the court's self-defense-related findings and conclusions. And citing State v. Lubong, 77 Hawai‘i 429, 433, 886 P.2d 766, 770 (App. 1994), DM argues the court did not properly assess the circumstances from his "shoes."
The State counters that the record supports the court's ruling. It argues the family court properly evaluated the evidence and rejected DM's self-defense claim.
The Intermediate Court of Appeals (ICA) affirmed the family court in a memorandum opinion with a dissent. The ICA concluded the court did not err, and the State had presented sufficient evidence to establish that DM intended to stab CW without lawful justification.
II.
We conclude the family court wrongly rejected DM's defense.
The court inadequately assessed DM's conduct from his perspective.
The family court also misapplied key self-defense elements. Because DM's actions before he stabbed CW did not constitute deadly
[152 Hawai'i 474] force, the court erred. Next, the court misapplied the duty to retreat. Third, there were not separate fights as the court found, but rather one violent event between DM and CW. Lastly, the court overlooked evidence about DM defending himself against multiple attackers.
A.
The court temporally bumped up the analysis of two central self-defense elements: the use of deadly force and the duty to retreat. The court's approach, we believe, skewed its subjective and objective analysis.
DM did not use deadly force before he stabbed CW. Thus, the court erred in FOF #42 when it ruled that "retrieving the weapon from the vehicle, coming out of the vehicle with the weapon, making the threatening statement and ultimately using the weapon does constitute deadly force." True, "using the weapon" does constitute deadly force. But DM's other actions do not constitute deadly force.
The use of deadly force, not actions before a person uses deadly force, constitutes deadly force. Deadly force means "force which the actor uses with the intent of causing or which the actor knows to create a substantial risk of causing death or serious bodily harm." HRS § 703-300 (2014) (emphasis added). DM used deadly force at the moment he stabbed CW. Not before. See State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990) (focusing on the defendant's perspective "at the time [they] tried to defend [themselves]" with deadly force).
DM's pre-stab conduct did not constitute deadly force for another reason. CW attacked DM. DM did not "provoke[ ] the use of force against him." So, under the circumstances, DM could produce his knife and threaten the crowd without those actions constituting deadly force. "A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor's intent is limited to creating an apprehension that the actor will use deadly force if necessary, does not constitute deadly force." HRS § 703-300.
No one claimed DM provoked the use of force against himself. HRS § 703-304(5)(a) (2014) reads:
The use of deadly force is not justifiable under this section if:
(a) The actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter[.]
The evidence showed DM intended to create apprehension that if necessary, he would use deadly force. CW and others had attacked DM and a crowd was "coming to rush" him. DM felt outnumbered. He did not want to hurt anybody. He just wanted to "make them back away." DM stayed in the same spot, near his cousin's car. And his words: "Who like get stab?" expressed an intent limited to creating an apprehension that he would use deadly force, if necessary.
Contrary to the court's finding, there was no deadly force when DM got his knife and cautioned the crowd.
B.
Turning to the duty to retreat, the court misapplied the law there, too.
Hawai‘i law does not require a person to retreat before using deadly force. That is, unless the person "knows that [they] can avoid the necessity of using such force with complete safety by retreating." HRS § 703-304(5)(b) (emphases added). It's a purely subjective inquiry.
HRS § 703-304(5) provides: "The use of deadly force is not justifiable under this section if ... [t]he actor knows that [they] can avoid the necessity of using such force with complete safety by retreating ...."
The court gave no consideration to whether DM knew he could retreat with complete safety. It felt DM should have or could have handled things differently; by, for instance, sitting in his cousin's car, a move DM feels would have made him "a sitting duck."
There was no evidence to support the court's recommended pathways to compete safety. And there was no evidence presented (or considered by the court) regarding
[152 Hawai'i 475] whether DM subjectively knew he could sit in the car or leave the unfamiliar, lightless area with complete safety. See State v. Augustin, 101 Hawai‘i 127, 128, 63 P.3d 1097, 1098 (2002) (explaining that a defendant only has knowledge of circumstances when the defendant is "aware" of the circumstances).
The court discounted duty to retreat's purely subjective nature. The duty to retreat depends on the actor's perspective. The factfinder considers what the defendant knows at the time. "The use of deadly force is not justifiable under this section if ... [t]he actor knows that [they] can avoid the necessity of using such force with complete safety by retreating ..." HRS § 703-304(5) (emphasis added); State v. Mark, 123 Hawai‘i 205, 226, 231 P.3d 478, 499 (2010) (applying the subjective inquiry to the duty to retreat: "[n]othing in this testimony indicates that Petitioner knew that he could avoid the necessity of using deadly force by retreating," and "Petitioner did not testify as to any knowledge he may have had in regard to avoiding the necessity of using force.").
Also, the family court prematurely applied the duty to retreat analysis. DM's acts up until the stab did not constitute deadly force. There was no deadly force used when DM grabbed the knife or when he produced it to scare the crowd. DM didn't have a duty to retreat at those times. The temporal context for the retreat analysis occurs at the moment deadly force is used or becomes imminent. See Matter of Y.K., 87 N.Y.2d 430, 639 N.Y.S.2d 1001, 663 N.E.2d 313 (1996) (explaining the duty to retreat "d[oes] not arise until the point at which deadly physical force was used or imminent.").
There is no duty to retreat when force is used. But if a person uses deadly force, there is a duty to retreat. To the extent the family court treated DM's "threat" – "Who like get stab?" - as "force" to boost its use of "deadly force" finding, it also erred. "Force" means any "bodily impact ... or the threat thereof." HRS § 703-300.
Contrary to the court's finding, the duty to retreat kicked in at the moment CW broke free from his friends and rushed DM. Even if DM could have safely left before that time, he had no legal duty to do so - he had not yet used deadly force. HRS §§ 703-300, 703-304(5)(b). Nothing in the record shows that - at the time CW attacked - DM knew he could retreat with complete safety without using deadly force.
C.
The family court failed to adequately assess and credit DM's perspective in another key way. The court split the event into separate fights. But there were not separate fights between DM and CW. Rather, there was one continuous violent event between DM and CW. The court's multiple-fights finding is clearly erroneous. See In re Doe, 95 Hawai‘i 183, 190, 20 P.3d 616, 623 (2001) (principle that a finding by the family court "is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made.").
The court's multiple fights findings include COL #12 and FOF numbers 23, 29, 38, 39:
23. After the fight was broken up, it was at that point that [DM] went over to a vehicle, the Nissan Altima that his cousin had driven him to Hau Bush in. [DM] retrieved a knife that he used for work. Upon retrieving the knife, [DM] exited the vehicle, and yelled out "who like get stabbed."
29. After the second altercation, when [DM] extricated himself from the situation, [DM] went to the vehicle, obtained a knife from the vehicle, came back out of the vehicle with the knife, and stated "who like get stabbed." At that point, [CW] charged at [DM].
38. [DM] was entitled to utilize self-defense in the first altercation.
39. When the second altercation occurred, [DM] was also entitled to use self-defense, but only such force that was reasonably necessary under the circumstances.
The court believed the fight between CW and DM mostly ended, restarted, then ended, before DM stabbed CW in yet another fight. Fights, though, are unpredictable. They often rapidly unfold and evolve. Lulls happen. Danger recedes and surges. A fight's end is sometimes murky.
Only about 10-15 seconds passed between DM rising from the ground and facing the
[152 Hawai'i 476] crowd with his knife. Before then, CW had escaped his friends’ hold and attacked DM. Others also attacked him, DM believed. And before that, CW attacked DM - after DM aided a girl who CW had vulgarly harassed.
To DM, there were no rounds, no multiple fights, just one continuous event. The family court did not adequately consider DM's perspective.
D.
The court disregarded DM's perspective relating to another self-defense feature. DM believed he faced peril from multiple attackers. Since DM used deadly force, which the court deemed objectively unreasonable, this mattered. See State v. DeLeon, 143 Hawai‘i 208, 218, 426 P.3d 432, 442 (2018) (stating that a person who faces other attackers presents "an exception to the general rule that a claim of self-defense fails when deadly force is used to stop a simple assault.").
DM believed that others besides CW had attacked him. As he fought with CW, someone else punched him in the head. Then, another person landed a punch. DM was getting "whacked." This happened right before DM darted to his cousin's nearby car.
The family court did not find that DM's testimony in this respect lacked veracity:
36. [DM] claimed he was assaulted not only by [CW] but that somebody else had struck him, which then caused him to extricate himself from the situation and go to the vehicle.
The court made one finding that DM's testimony was not credible:
27. [DM] testified that the stab was an accident, and that he was trying to hug and/or catch [CW]. The Court does not find that to be credible testimony. The Court finds that [DM] did in fact stab, and did intend to stab the complaining witness with the knife that was produced.
The family court ignored, or at least severely undervalued, DM's experiences and point of view at the moment he used deadly force. CW had attacked DM more than once. Others also assaulted him. People were rowdy, going nuts in the pitch-black area. DM wasn't from there. He felt outnumbered. DM thought the ‘Ewa Beach crowd was about to rush him.
There was evidence to support DM's fear from other attackers. CW's friend got physical with DM. He testified that he "grabbed" DM and "walked away with him."
The court failed to consider DM's belief that deadly force was necessary to protect himself from serious physical harm by more than one attacker. DeLeon, 143 Hawai‘i at 218, 426 P.3d at 442.
Defendants may use deadly force if they believe it is necessary to protect themselves against death or serious bodily injury. HRS § 703-304(2). " ‘Serious bodily injury’ means: bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." HRS § 707-700 (2014 & Supp. 2019).
III.
A subjective and objective inquiry guides Hawai‘i's self-defense law. In self-D cases, the factfinder's decision pivots on the objective reasonableness of the defendant's subjective belief about the need to use force or deadly force. State v. Culkin, 97 Hawai‘i 206, 217, 35 P.3d 233, 244 (2001).
This case involves deadly force. DM concedes he used deadly force when he stabbed CW with a knife. Deadly force means "force which the actor uses with the intent of causing or which the actor knows to create a substantial risk of causing death or serious bodily harm." HRS § 703-300.
The family court concluded that DM "may have subjectively believed " deadly force was necessary. Then the court skipped to the objective analysis:
41. While [DM] may have subjectively believed that such deadly force was necessary, the Court does not find that the amount of force used was objectively reasonable under the circumstances of this case, beginning and culminating with getting the knife from the vehicle, coming out of the vehicle instead of staying in the vehicle, making a threatening statement and ultimately resulting in [DM] stabbing [CW].
We conclude that the family court inadequately considered DM's perspective. It found that DM's subjective belief was objectively
[152 Hawai'i 477] unreasonable without appraising DM's point of view. The court shortchanged DM's perspective. And this tilted its objective analysis.
HRS § 703–304(2) describes the subjective part. The use of deadly force in self-protection is justified "if the actor believes that deadly force is necessary to protect [themselves] against death, serious bodily injury, kidnapping, rape, or forcible sodomy."
Compare HRS § 703-304(1) regarding the use of non-deadly force ("the use of force ... is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting [themselves] against the use of unlawful force by the other person on the present occasion") (emphasis added) with HRS § 703-304(2) regarding deadly force ("the use of deadly force is justifiable ... if the actor believes that deadly force is necessary to protect [themselves] against death, serious bodily injury, [etc.]") (emphasis added).
Hawai‘i Standard Jury Instructions, Criminal (HAWJIC) 7.01A misstates HRS § 703-304(2). For deadly force cases, it adds the adverb "immediately."
HRS § 703-300 brings the objective part. It defines "believes" as "reasonably believes."
Once the type of force is determined, a two-step inquiry happens. In deadly force cases, the factfinder first decides whether the defendant subjectively believed that deadly force was necessary. Then, if so, the judge or jury decides whether that belief was objectively reasonable. But how?
The defendant's perspective provides the evidentiary scope for the objective analysis. The defendant's sensory and pre-deadly force experiences control the factfinder's objective evaluation. See Pemberton, 71 Haw. at 477, 796 P.2d at 85 (principal that "the standard for judging the reasonableness of a defendant's belief for the need to use deadly force is determined from the point of view of a reasonable person in the Defendant's position under the circumstances as [they] believed them to be ."); Lubong, 77 Hawai‘i at 433, 886 P.2d at 770 (explaining that "[i]n evaluating the reasonableness of a defendant's belief that deadly force was necessary for self-protection, the evidence must be assessed from the standpoint of a reasonable person in the defendant's position under the circumstances as the defendant subjectively believed them to be at the time [they] tried to defend [themselves].").
The court bypassed DM's perspective of the event. There were not separate, divisible fights, as the court believed. And CW did not pose the only danger to DM. Also, temporally, the court incorrectly advanced DM's use of deadly force, as well as DM's duty to retreat. Further, the court overlooked DM's subjective belief that he could not retreat with complete safety. These analytical flaws, we conclude, improperly impacted the court's objective analysis.
A defendant's circumstances - what they think, see, hear, touch, smell, and (sometimes even) taste - frame the objective inquiry. Because the defendant's subjective belief shapes the objective standard, the judge or jury wears the defendant's headset and enters the defendant's reality. See Lubong, 77 Hawai‘i at 433, 886 P.2d at 770 (instructing that "[t]he factfinder is required to place itself in the shoes of the defendant, determine the point of view which the defendant had at the time of the incident, and view the conduct of the victim with all its pertinent sidelights as the defendant was warranted in viewing it.") (Cleaned up.)
We are unconvinced that the family court satisfactorily assessed DM's perspective. CW attacked DM, more than once. Someone else punched DM in the head. And DM thought another teen also hit him. The chaotic crowd in the unfamiliar, darkened area scared DM. They were nuts. DM believed the fight with CW had dangerously ripened. He thought others endangered him; DM felt outnumbered. "The whole ‘Ewa Beach" was there.
DM got the knife to make the crowd withdraw. Yet, after DM retrieved the knife, CW and others still advanced. DM recalled: "had more boys coming to rush me." They were close, ten feet away. DM stayed put. Only seconds had passed since CW and others had struck him while he was on the ground. DM warned: "Who like get stab?" He didn't want to hurt anybody, he said. DM just wanted to "make them back away." It didn't work. CW rushed, tackled, and punched DM. DM stabbed him, once.
[152 Hawai'i 478] We conclude that the family court inadequately assessed the circumstances from DM's perspective. The court's slight treatment of DM's subjective beliefs and the court's errors relating to the use of deadly force and the duty to retreat, marred the court's objective analysis.
Under the circumstances of this case, we find that there was not substantial evidence presented to support the family court's conclusion that the State proved beyond a reasonable doubt that DM's use of deadly force was unjustified.
As we explained in State v. Martinez:
We have long held that evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or a jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.
101 Hawai‘i 332, 338, 68 P.3d 606, 612 (2003) (cleaned up).
IV.
We vacate the ICA's Judgment on Appeal. We reverse the Family Court of the First Circuit's Order Re: Motion for Reconsideration of Order Adjudicating DM of Attempted Assault in the First Degree and Restitution Filed October 29, 2019 and the Findings of Fact and Conclusions of Law entered by the family court on July 24, 2020.
DISSENTING OPINION BY NAKAYAMA, J., WITH WHOM RECKTENWALD, C.J., JOINS
I. INTRODUCTION
In the early morning of June 2, 2019, there was a fight between DM and CW at Hau Bush. The initial fight between DM and CW was broken up by multiple witnesses. Then, DM retrieved a knife from his cousin's car. DM exited the car, brandished the knife, and yelled "who like get stabbed," inflaming CW. At this point, other people at the scene were restraining CW and trying to calm him down. CW broke out from being held back, charged at, and tackled DM. DM stabbed CW as he was being tackled to the ground by CW.
I disagree with the majority's conclusion that substantial evidence does not support DM's adjudication. I also depart from the majority's determination that the family court's self-defense analysis was erroneous. The family court adequately assessed the circumstances from DM's perspective and properly did not apply the "multiple attackers" circumstance. Accordingly, I respectfully dissent.
Elaborating on the substantial evidence standard in self-defense cases, this court has provided:
[E]vidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.
State v. Matuu, 144 Hawai‘i 510, 517, 445 P.3d 91, 98 (2019) (quoting State v. Richie, 88 Hawai‘i 19, 33, 960 P.2d 1227, 1241 (1998) ) (brackets in original) (emphasis added).
II. DISCUSSION
A. The family court's Finding of Fact regarding the existence of two altercations is not clearly erroneous.
My disagreement with the majority's analysis stems in part from our differing views of the factual circumstances in this case. The majority concludes that "there were not separate fights between DM and CW. Rather, there was one continuous violent event between DM and CW." I disagree.
The family court's pertinent Findings of Fact (FOF) are:
11. [CW] further admitted that he started the fight with [DM], and that he threw the first punch. He stated that others were trying to break it up. [CW] stated that he was trying to get back at [DM], and that at some point the altercation stopped. The Court found this testimony credible.
[152 Hawai'i 479]
12. [CW] stated that [DM] went to a vehicle, went inside the vehicle, got a knife, and that [DM] stated "who like get stabbed." [CW] the [sic] immediately approached [DM] again. The Court found this testimony credible.[ ]
13. [CW] was stabbed during this second altercation with [DM], and he sustained a stab wound to the area of his left abdomen by [DM], with the knife that [DM] had procured from the vehicle.
....
22. The first altercation was partially broken up when [HZC] stepped in between and attempted to break up the fight, which then continued somewhat as a second altercation that the Court views as a continued part of the first altercation.
23. After the fight was broken up, it was at that point that [DM] went over to a vehicle, the Nissan Altima that his cousin had driven him to Hau Bush in. [DM] retrieved a knife that he used for work. Upon retrieving the knife, [DM] exited the vehicle, and yelled out "who like get stabbed."
24. At that point, the Court finds that other people were attempting to calm [CW] down, but they were unsuccessful.
25. The Court finds that [CW] charged at [DM] while [DM] was holding the knife.
....
29. After the second altercation, when [DM] extricated himself from the situation, [DM] went to the vehicle, obtained a knife from the vehicle, came back out of the vehicle with the knife, and stated "who like get stabbed." At that point, [CW] charged at [DM].
The underlined FOFs are the portions that DM specifically challenged before the ICA.
"[A] trial court's findings of fact are subject to the clearly erroneous standard of review. A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with a definite and firm conviction that a mistake has been committed." State v. Rapozo, 123 Hawai‘i 329, 336, 235 P.3d 325, 332 (2010) (quoting State v. Gabalis, 83 Hawai‘i 40, 46, 924 P.2d 534, 540 (1996) ).
Here, after considering the weight and credibility of the evidence, the family court determined that "the altercation stopped" and "the fight was broken up." Thereafter, the family court found a second altercation took place, resulting in DM stabbing CW. Contrary to the majority's conclusion, the following testimony demonstrates that substantial evidence in the record supports the family court's finding of two altercations.
First, CW testified that he had "two rounds" of fighting with DM. Second, a witness, HZC, testified that he "tried to stop" and "broke up" the first fight. HZC explained "a couple people [were] holding [DM and CW] back and then I was in the middle pushing [DM and CW] away. And then I grabbed [DM] and walked away with [DM], and then I thought it was cool." HZC reiterated that he "broke up" the initial fight between DM and CW and HZC believed DM and CW "were cooling down." Third, another witness, EO, testified that people broke up the first fight. EO explained that people were yelling at CW and "telling him to calm down." Fourth, another witness, KJ, similarly testified that DM and CW were separated, at which point she heard DM say "you like get shanked," which prompted CW to run ten to thirty seconds to get to and tackle DM.
All this testimony supports the family court's finding of two altercations. In light of this evidence, the family court's finding is not clearly erroneous.
B. The ICA correctly concluded that the family court appropriately analyzed self-defense.
1. The family court appropriately analyzed DM's subjective belief that force was necessary.
The majority asserts that "the defendant's subjective belief drives an objective reasonableness standard" in self-defense cases. While it is true that self-defense "depends on the actor's belief that the use of force was necessary ... to protect oneself," it must fall to the trier of fact to "determine whether the defendant did in fact subjectively believe the use of force was necessary."
[152 Hawai'i 480] State v. Lealao, 126 Hawai‘i 460, 470, 272 P.3d 1227, 1237 (2012) (citing State v. Walsh, 125 Hawai‘i 271, 299, 260 P.3d 350, 378 (2011) ). A defendant's credibility is central to this inquiry, and the trier of fact is not required to simply believe DM at his word. See id. Rather, the trier of fact must make its own determination based on the weight of the evidence "whether the defendant was truthful about his subjective belief of the circumstances." Walsh, 125 Hawai‘i at 299, 260 P.3d at 378.
This court has noted that the prosecution disproves a self-defense claim beyond a reasonable doubt "when the trier of fact believes [the prosecution's] case and disbelieves the defense." In re Doe, 107 Hawai‘i 12, 19, 108 P.3d 966, 973 (2005) (quoting State v. Pavao, 81 Hawai‘i 142, 146, 913 P.2d 553, 557 (App. 1996) ). Such is the case here, where the family court made credibility determinations and findings of fact and ultimately ruled that the State had met its burden in disproving DM's self-defense argument. This court should "not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the [trier of fact]." State v. Jenkins, 93 Hawai‘i 87, 101, 997 P.2d 13, 27 (2000) (quoting State v. Buch, 83 Hawai‘i 308, 321, 926 P.2d 599, 612 (1996) ) (brackets in original).
2. The family court's Findings of Fact were sufficient to consider DM's perspective.
On certiorari, DM specifically contends that the following facts were "supported by the evidence but absent from the Family Court's FOFs" and "were critical to consideration of the subjective prong:"
4. After [DM] came out of the car with the knife and stated, "Who like get stabbed?" the other boys approaching [DM] with [CW] backed off.
6. The vast majority of people at the Hau Bush party were from ‘Ewa Beach, and [DM] was the only individual from Kalihi.
7. [DM]’s only ally was his cousin, who was not in the immediate area of the first and second altercations between [CW] and [DM], and was apparently unaware of the fight.
However, a "trial judge is required to only make brief, definite, pertinent findings and conclusions upon contested matters; there is no necessity for over-elaboration of detail or particularization of facts." State v. Ramos-Saunders, 135 Hawai‘i 299, 304-05, 349 P.3d 406, 411-12 (App. 2015) (quoting Rezentes v. Rezentes, 88 Hawai‘i 200, 203, 965 P.2d 133, 136 (App. 1998) ). The family court was therefore not required to specifically state all of the potentially relevant facts in the FOFs in order to properly consider the subjective prong of DM's self-defense claim. Although the family court did not state certain potential facts in the FOFs, this does not mean that the family court did not consider DM's testimony. Thus, the omission of certain details from the FOFs did not render the FOFs clearly erroneous.
Moreover, I disagree with the majority's conclusion "that the family court inadequately considered DM's perspective" because the family court "found that DM's subjective belief was objectively unreasonable without appraising DM's point of view." As discussed above, the family court was not required to exhaustively lay out DM's subjective beliefs. Nevertheless, the following FOFs demonstrate that the family court considered DM's point of view. In FOF 41, the family court states "[DM] may have subjectively believed that such deadly force was necessary." Other FOFs demonstrate why DM may have believed deadly force was necessary. For example, FOF 15 states HZC testified "there were other people in the area that were hitting each other, and that it was chaotic at the scene." FOF 18 found the initial confrontation between DM and CW was started by CW, and that CW was intoxicated on the night of the incident. FOF 20 details that CW responded "fuck Kalihi" after DM stated he was from Kalihi. FOF 36 states: "[DM] claimed he was assaulted not only by the complaining witness but that somebody else had struck him ...." Taken together, the FOFs indicate the family court appraised DM's point of view.
3. The family court properly applied the use of deadly force standard.
The majority argues that the family court erred when it ruled that "retrieving the
[152 Hawai'i 481] weapon from the vehicle, coming out of the vehicle with the weapon, making the threatening statement and ultimately using the weapon does constitute deadly force." According to the majority, "DM used deadly force at the moment he stabbed CW. Not before." By this logic, "DM could produce his knife and threaten the crowd without those actions constituting deadly force."
Under the Hawai‘i Penal Code, "[a] threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor's intent is limited to creating an apprehension that the actor will use deadly force if necessary, does not constitute deadly force." Hawai‘i Revised Statutes (HRS) § 703-300 (2014) (emphasis added). This section of the code was adopted nearly verbatim from the Model Penal Code (MPC) section 3.11(2). In cases where defendants have brandished a weapon as a form of threat, courts interpreting this provision of the MPC have held that the trier of fact "must determine whether the defendant intended to use the weapon in a deadly manner." See, e.g., Commonwealth v. Cataldo, 423 Mass. 318, 668 N.E.2d 762, 765 (1996) ("[T]he question of whether a weapon is dangerous as used is always one for the fact finder.") (brackets in original) (citations omitted). Placing this determination of intent within the discretion of the trier of fact mitigates the potential for unnecessary escalation.
MPC § 3.11(2) (1985) provides, in part: "A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force."
The Massachusetts Supreme Judicial Court explained, "[a]llowing the jury to determine whether a defendant's use of a dangerous weapon in a manner not likely to cause death or great bodily harm constitutes deadly force protects those defending themselves from violence, avoids unnecessary escalation of force, and preserves the vital role of the jury in fact-finding." Cataldo, 668 N.E.2d at 766.
Here, the majority gives DM the benefit of the doubt that, when he retrieved the knife and used it to threaten the crowd, he only intended to create an apprehension that he would use deadly force. However, the evidence of intent, including DM's words "[w]ho like get stabbed?" and the fact that DM did stab CW with the knife, could lead a reasonable fact finder to conclude that the entire sequence of events from when DM retrieved the knife to DM's use of the knife constituted deadly force. Considering the evidence in the light most favorable to the prosecution, there was substantial evidence for the fact finder's decision.
4. The majority does not adequately consider the objective prong of the self-defense analysis.
I believe the majority's analysis gives insufficient consideration to the objective prong of the self-defense analysis. "Self-defense to a criminal charge contains both a subjective prong and an objective prong: the defendant must believe that force is necessary, and that belief must be reasonable." State v. Sandoval, 149 Hawai‘i 221, 487 P.3d 308, 324 (2001) (citing State v. Augustin, 101 Hawai‘i 127, 128, 63 P.3d 1097, 1098 (2002) ) (emphasis added).
The test for assessing a defendant's self-protection justification pursuant to HRS § 703-304 (2014) involves two prongs because HRS § 703-300 (2014) defines "believes" as "reasonably believes":
"The first prong is subjective; it requires a determination of whether the defendant had the requisite belief that deadly force was necessary to avert death, serious bodily injury, kidnapping, rape, or forcible sodomy.
....
If the State does not prove beyond a reasonable doubt that the defendant did not have the requisite belief that deadly force was necessary, the factfinder must then proceed to the second prong of the test. This prong is objective; it requires a determination of whether a reasonably prudent person in the same situation as the defendant would have believed that deadly force was necessary for self-protection."
State v. Matuu, 144 Hawai‘i 510, 520-21, 445 P.3d 91, 101-02 (2019) (quoting
[152 Hawai'i 482] State v. Culkin, 97 Hawai‘i 206, 215, 35 P.3d 233, 242 (2001) (footnote omitted).
Therefore, even assuming DM subjectively believed deadly force was necessary to avert serious bodily injury, the family court correctly determined the second prong of the test was not met: a reasonably prudent person in DM's situation would not have believed deadly force was necessary for self-protection. Given that the family court correctly found that the first altercation between DM and CW had stopped, the family court properly determined that DM's use of deadly force was not "objectively reasonable under the circumstances of this case, beginning and culminating with getting the knife from the vehicle, coming out of the vehicle instead of staying in the vehicle, making a threatening statement and ultimately resulting in [DM] stabbing [CW]."
Taking into consideration the factual circumstances as the family court found them to be - the first fight, which involved no weapons, had ended; DM was able to remove himself from the fight and enter his cousin's car - DM's subsequent use of deadly force (resulting in DM stabbing CW) was not objectively reasonable. In other words, I agree with the ICA's conclusion that
a reasonably prudent person would not conclude, after the fight was broken up, that it was reasonable to go to the vehicle, retrieve a knife, yell out "who like get stabbed," and then stab CW when CW charged [DM]. There is no evidence that CW had any weapons. Although [DM] understandably would be upset by CW having initiated a fight with [DM], [DM] acted in an objectively unreasonable manner by escalating the situation, after the fight was broken up.
(Emphasis added.) Because a reasonably prudent person in the same situation as DM would not have believed that deadly force was necessary to protect himself against serious bodily injury, DM's use of force was not justifiable. See HRS § 703-304(2) ; see also Matuu, 144 Hawai‘i at 521, 445 P.3d at 102 ("[E]ven assuming Matuu had the requisite belief that his use of force was necessary (prong 1), there was substantial evidence in the record to support a finding that a reasonably prudent person in the same situation as Matuu would not have believed that the force exercised by Matuu was immediately necessary for self-protection (prong 2).").
Because DM's use of deadly force was not justifiable under HRS § 703-304(2), it is unnecessary to determine whether this use of deadly force is also not justifiable under HRS § 703-304(5). However, I agree with the ICA that the family court implicitly determined that DM subjectively knew he could avoid the use of deadly force. As the ICA pointed out,
On certiorari, DM relies on Matter of Y.K., 87 N.Y.2d 430, 639 N.Y.S.2d 1001, 663 N.E.2d 313 (1996), in support of his argument that he did not have a duty to retreat. Matter of Y.K. provides:
If the case involves the use of deadly physical force and the fact finder determines that the use of such force was subjectively and objectively reasonable under the circumstances, then the fact finder must determine whether defendant could retreat with safety. If a defendant confronted with deadly physical force knows retreat can be made with complete safety and fails to do so, the defense is lost.
87 N.Y.2d 430, 639 N.Y.S.2d 1001, 663 N.E.2d at 315 (emphasis added). DM's reliance on Matter of Y.K. is misplaced because the fact finder here determined that DM's use of deadly force was not subjectively and objectively reasonable. Thus, the family court was not required to determine if DM could retreat with safety.
The ICA noted that the family court considered DM's subjective knowledge in FOF 37 and COL 12, which provide:
[FOF] 37. The Minor could have gone to the vehicle and instead of getting the knife could have extricated himself from the situation if he stayed in the vehicle or he could have left the area but chose not to do so.
[COL] 12. "The use of deadly force is not justifiable ... if ... [t]he actor knows that he can avoid the necessity of using such force with complete safety by retreating[.]" HRS § 703-304(5). Minor left the area to obtain a weapon, the knife, from a vehicle and returned and stated "who like get stabbed." The confrontation was broken up, but Minor chose to return with the weapon, ultimately stabbing [CW]. Minor could have waited in the vehicle or left the area with complete safety.
when [DM] went to his cousin's vehicle to retrieve the knife, the fight was broken up. Although [DM] testified he did not have
[152 Hawai'i 483]
the keys to his cousin's vehicle, the doors were open, [DM] had his phone with him and his cousin was "somewhere around" the area but [DM] did not attempt to call his cousin. There is no indication that [DM] was chased to his cousin's vehicle and nothing prevented [DM] from remaining in the vehicle and calling his cousin so they could leave the area. Therefore, the record supports the Family Court's ruling that [DM]’s use of deadly force was not justified under HRS § 703-304(5)(b).
(Emphasis added; footnote omitted.) Therefore, I disagree with the majority's contention that the family court misapplied the duty to retreat by giving "no consideration to whether DM knew he could retreat with complete safety." To the contrary, DM's actions immediately prior to the act of stabbing CW are relevant to DM's knowledge "in regard to avoiding the necessity of using force." State v. Mark, 123 Hawai‘i 205, 226, 231 P.3d 478, 499 (2010) ; but see Majority at 475, 526 P.3d at 452. Unlike the cases cited by the majority, DM demonstrated his awareness of his ability to retreat with complete safety by actually doing so. DM's retreat to his cousin's car while the fight was broken up is circumstantial evidence of DM's subjective knowledge of his ability to retreat with complete safety. See State v. Murphy, 59 Haw. 1, 19, 575 P.2d 448, 460 (1978) (citations omitted) ("[A] criminal case may be proven beyond a reasonable doubt on the basis of reasonable inferences drawn from circumstantial evidence.").
5. The family court properly did not apply the "multiple attacker" circumstance.
The majority concludes that the family court improperly failed to consider DM's belief that deadly force was necessary to protect himself from multiple attackers. However, the family court did not err because the "multiple attacker" circumstance is not applicable.
Citing to State v. DeLeon, 143 Hawai‘i 208, 426 P.3d 432 (2018), DM contends that his use of deadly force was justified because he faced multiple attackers. In DeLeon, defendant was charged with Murder in the Second Degree after a confrontation with several people led to the defendant shooting a victim. 143 Hawai‘i at 209-10, 426 P.3d at 433-34. At issue was whether the criminal histories of two others involved in the confrontation were erroneously excluded when a dispute existed over who was the initial aggressor. Id. at 213, 426 P.3d at 437. This court stated:
Generally, self-defense using deadly force is not a lawful action to stop a simple assault, and thus, there is no dispute as to who was the first aggressor. See HRS § 703-304(2) (use of deadly force is justifiable if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy); cf. State v. Pearson, 288 N.C. 34, 40, 215 S.E.2d 598, 603 (N.C. 1975) (exception to general rule where "there is a great disparity in strength between the defendant and the assailant, or where the defendant is attacked by more than one assailant.")
Id. at 218, 426 P.3d at 442. This court noted that the defendant "used deadly force on an unarmed attacker," but "there is a factual dispute as to whether [the defendant] was being attacked by multiple assailants, which is an exception to the general rule that a claim of self-defense fails when deadly force is used to stop a simple assault." Id. at 218, 426 P.3d at 442.
However, substantial evidence demonstrates that DM was not being approached by multiple attackers when he used deadly force. CW was the only person who charged DM when DM was holding the knife, and the other people there were trying to prevent CW from doing so. Thus, DM's reliance on DeLeon is misplaced and the "multiple attacker" circumstance is not applicable in this case.
III. CONCLUSION
For the foregoing reasons, I would affirm the ICA's Judgment on Appeal, which affirmed the family court's Order Re: Motion for Reconsideration of Order Adjudicating Minor of Attempted Assault in the First Degree and Restitution Filed October 29, 2019, and the Findings of Fact and Conclusions
[152 Hawai'i 484] of Law entered by the family court on July 24, 2020.