In re: DM. ( 2023 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-MAR-2023
08:07 AM
Dkt. 11 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
In the Interest of DM
SCWC-XX-XXXXXXX
CERTIORARI FROM THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-J NO. 0101376)
MARCH 15, 2023
McKENNA, WILSON, AND EDDINS, JJ.;
AND NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY EDDINS, J.
A minor stabbed another minor. The State prosecuted, and
the minor, DM, argued self-defense. The family court rejected
his defense. It ruled the prosecution had proven attempted
assault in the first degree beyond a reasonable doubt.
In Hawaiʻi 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
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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 Hawaiʻi
Revised Statutes (HRS) §§ 705-500 and 707-710, attempted assault
in the first degree. 1 After a bench trial, the family court
adjudicated DM as charged.
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.
1 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).
2
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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.”
3
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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 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.”
4
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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.” 2
2 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].
5
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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.” 3
Further, the court found that DM “could have waited in the
vehicle or left the area with complete safety.” 4
DM appealed. DM challenges the court’s self-defense-
related findings and conclusions. And citing State v. Lubong,
77 Hawaiʻi 429, 433, 886 P.2d 766, 770 (App. 1994), DM argues the
court did not properly assess the circumstances from his
“shoes.”
3 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.
4 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.
6
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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 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.
7
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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.” 5 So, under the circumstances, DM could
5 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[.]
8
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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.
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.
Hawaiʻi 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
9
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safety by retreating.” HRS § 703-304(5)(b) (emphases added). 6
It’s a purely subjective inquiry.
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 whether DM subjectively
knew he could sit in the car or leave the unfamiliar, lightless
area with complete safety. See State v. Augustin, 101 Hawaiʻi
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 . . .”
6 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 . . . .”
10
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HRS § 703-304(5) (emphasis added); State v. Mark, 123 Hawaiʻi
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. 7 The temporal
context for the retreat analysis occurs at the moment deadly
force is used or becomes imminent. See Matter of Y.K., 663
N.E.2d 313 (N.Y. 1996) (explaining the duty to retreat “d[oes]
not arise until the point at which deadly physical force was
used or imminent.”).
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
7 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.
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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. 8 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 Hawaiʻi 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
8 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.
12
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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 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 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 Hawaiʻi 208, 218, 426 P.3d 432, 442 (2018) (stating that a
person who faces other attackers presents “an exception to the
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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.” 9 This
happened right before DM darted to his cousin’s nearby car.
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. 10 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.
The court failed to consider DM’s belief that deadly force
was necessary to protect himself from serious physical harm by
9 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.
10 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.”
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more than one attacker. 11 DeLeon, 143 Hawaiʻi at 218, 426 P.3d at
442.
III.
A subjective and objective inquiry guides Hawaiʻi’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. 12 State v.
Culkin, 97 Hawaiʻi 206, 217, 35 P.3d 233, 244 (2001).
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 unreasonable without appraising DM’s point of view.
11 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).
12 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.
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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.” 13
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
13 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).
Hawaiʻi Standard Jury Instructions, Criminal (HAWJIC) 7.01A misstates
HRS § 703-304(2). For deadly force cases, it adds the adverb “immediately.”
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(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 Hawaiʻi 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
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Hawaiʻi 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.
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
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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. 14
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.
Phyllis J. Hironaka /s/ Sabrina S. McKenna
for petitioner /s/ Michael D. Wilson
/s/ Todd W. Eddins
Loren Thomas
for respondent
14 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 Hawaiʻi 332, 338, 68 P.3d 606, 612 (2003) (cleaned up).
19