choice of evils defense in Hawaii

2021Kaeo argues the evidence clearly shows he had established the essential elements of the choice of evils defense under HRS § 703-302 and that he reasonably believed his actions were necessary to prevent imminent harm to his psyche due to the cultural desecration of Haleakalâ from the delivery of DKIST construction materials. 12 HRS § 703-302 (2014) provides, in relevant part: §703-302 Choice of Evils. (1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that: (a) The harm or evil sought to be avoided by such co

2019Id. at 120-22, 436 P.3d at 1203 -05 (citing State v. Maumalanga, 90 Hawai i 58, 63, 976 P.2d 372, 377 (1988) (explaining that the choice-of-evils defense assesses a defendant’s belief under a “reasonable” person standard).

2019This court based its ruling on the concurring and dissenting opinion of then-Judge Acoba, who acknowledged in the ICA that “[t]he term ‘believes’ in HRS § 703-302 meant ‘reasonably believes[,]’” and further, that “this definition [of belief] . . . was intended by the legislature to incorporate a ‘reasonable [person] standard.’” See State v. Maumalanga, 90 Hawai i 96, 112 n.3, 976 P.2d 410 , 426 n.3 (App. 1998); HRS § 703-300 (“In this chapter, unless a different meaning is plainly required: ‘Believes’ means reasonably believes”); HRS § 703-302 supp. cmt. (explaining that the legislature adopte

2002On appeal, 90 Hawai'i 96, 103-04 , 976 P.2d 410, 417-18 (App.1998), this court concluded that the instruction was erroneous because the first and third conditions referenced in the instruction were derived from ease law that predated the adoption of the Hawai'i Penal Code and were not incorporated into the choice of evils defense following the enactment of -HRS § 703-302.

2022For the choice-of-evils defense to apply, the defendant must reasonably believe their conduct is "necessary to avoid an imminent harm or evil[.]" HRS § 703-302; see State v. Friedman, 93 Hawai#i 63, 71, 996 P.2d 268, 276 (2000); see also State v. Kauhane, 145 Hawai#i 362, 371, 452 P.3d 359, 374 (2019) ("[A]lthough [the defendant's] belief had to be objectively reasonable, it was also necessary that [the defendant], in fact, subjectively held such a belief.").

2022See Friedman, 93 Hawai#i at 71, 996 P.2d at 276 (concluding that "because there was no threat of imminent harm, the trial court did not err in refusing to consider the choice of evils defense").

2022For the choice-of-evils defense to apply, the defendant must reasonably believe their conduct is "necessary to avoid an imminent harm or evil[.]" HRS § 703-302; see State v. Friedman, 93 Hawai#i 63, 71, 996 P.2d 268, 276 (2000); see also State v. Kauhane, 145 Hawai#i 362, 371, 452 P.3d 359, 374 (2019) ("[A]lthough [the defendant's] belief had to be objectively reasonable, it was also necessary that [the defendant], in fact, subjectively held such a belief.").

2021For the choice of evils defense to apply, one element on which Kaeo had to present credible evidence was that he believed his conduct "to be necessary to avoid an imminent harm or evil to the actor or to another[.]" HRS § 703- 302(1); See also HRS § 703-300 (2014) ("'Believes' means reasonably believes."); State v. Kauhane, 145 Hawai#i 362, 374, 452 P.3d 359, 371 (2019) (holding that for the choice of evils defense, although the defendant's belief had to be objectively reasonable, it was also necessary that the defendant in fact subjectively held such a belief).

2016In State v. Jardine, 101 Hawañ 3, 61 P.3d 514 (App.2002), the Intermediate Court of Appeals similarly declined to recognize an unborn child as a “person” or “another” for purposes of the choice of evils defense or the defense of “use of force for the protection of other persons”, writing “[sjince Hawañ has not legislatively included unborn children within the definitions of ‘another’ or ‘person’ for purposes of the Hawai'i Penal code, we decline to do so.” Id. at 9-10, 61 P.3d at 520-21 (footnote omitted).

2016In State v. Jardine, 101 Hawañ 3, 61 P.3d 514 (App.2002), the Intermediate Court of Appeals similarly declined to recognize an unborn child as a “person” or “another” for purposes of the choice of evils defense or the defense of “use of force for the protection of other persons”, writing “[sjince Hawañ has not legislatively included unborn children within the definitions of ‘another’ or ‘person’ for purposes of the Hawai'i Penal code, we decline to do so.” Id. at 9-10, 61 P.3d at 520-21 (footnote omitted).

2004HRS § 703-300 (1993) states, in relevant part, “In this chapter, unless a different meaning is plainly required: ‘Believes’ means reasonably believes.” In State v. Maumalanga, 90 Hawai'i 58, 59 , 976 P.2d 372, 373 (1998), the Hawai'i Supreme Court held that the elements of the choice of evils defense are set forth, in their entirety, in the express language of the aforementioned statute and do not include additional elements from the “common law” formulation as set forth in State v. Kealoha, 9 Haw.App. 115 , 826 P.2d 884 (1992), and State v. DeCastro, 81 Hawai'i 147 , 913 P.2d 558 (App.1996),

2004HRS § 703-300 (1993) states, in relevant part, “In this chapter, unless a different meaning is plainly required: ‘Believes’ means reasonably believes.” In State v. Maumalanga, 90 Hawai'i 58, 59 , 976 P.2d 372, 373 (1998), the Hawai'i Supreme Court held that the elements of the choice of evils defense are set forth, in their entirety, in the express language of the aforementioned statute and do not include additional elements from the “common law” formulation as set forth in State v. Kealoha, 9 Haw.App. 115 , 826 P.2d 884 (1992), and State v. DeCastro, 81 Hawai'i 147 , 913 P.2d 558 (App.1996),

2025See State v. Smith, 91 Hawai i 450, 463, 984 P.2d 1276, 1289 (Haw.

2022See State v. Padilla, 114 Hawai#i 507, 511, 164 P.3d 765, 769 (App. 2007). 2 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER Mersberg sought "[r]edaction of [p]rejudicial information from [the] State's [p]roposed [e]xhibits[,]" pursuant to Hawai#i Rules of Evidence (HRE) Rules 401 and 403.4/ Specifically, Mersberg sought redaction of "[a]ny reference to abuse/violence in the Order for Protection," including redaction of the following phrases: (1) "[t]hat the above named Respondent [i.e., Mersberg] be restrained from committing further acts of abuse or threats of abuse"; an

2009Woodfall cites to three cases, State v. LeVasseur, 1 Haw.App. 19, 25 , 613 P.2d 1328, 1333 (1980) (determining that the choice of evils defense was not available to the defendant because a natural person—and not a dolphin—is "another,” pursuant to HRS § 701-118), State v. Jardine, 101 Hawai'i 3, 9-10 , 61 P.3d 514, 519-20 (App.2002) (holding that the defendant may not use the choice of evils defense for protecting an unborn child where the legislature did not include "unborn children" in the definition of "another" or "person”), and State v. Aiwohi, 109 Hawai'i 115 , 123 P.3d 1210 (2005), argu

2009Under the same analysis of LeVasseur and Jardine , a fictitious person is not included in the definition of "another” or "person.” See LeVasseur, 1 Haw.App. at 25 , 613 P.2d at 1333 ; Jardine, 101 Hawai'i at 9-10 , 61 P.3d at 519-20 .

2008"The burden of establishing ineffective assistance of counsel rests upon the appellant." State v. Antone, 62 Haw. 346, 348 , 615 P.2d 101, 104 (1980).

2008"The burden of establishing ineffective assistance of counsel rests upon the appellant." State v. Antone, 62 Haw. 346, 348 , 615 P.2d 101, 104 (1980).

2008While a jury should be instructed on every defense or theory of defense having any support in the evidence, State v. Sawyer, 88 Hawai`i 325, 333, 966 P.2d 637, 645 (1998), there was no evidentiary basis in the record for giving a choice-of-evils instruction here.

2008While a jury should be instructed on every defense or theory of defense having any support in the evidence, State v. Sawyer, 88 Hawai`i 325, 333, 966 P.2d 637, 645 (1998), there was no evidentiary basis in the record for giving a choice-of-evils instruction here.

2001In this regard, we note generally that a defendant is “entitled to an instruction on every defense supported by the evidence, no matter how inconclusive the evidence may be, provided that evidence would support consideration of that issue by the jury.” State v. McMillen, 83 Hawai'i 264, 265 , 925 P.2d 1088, 1089 (1996); see also State v. Ortiz, 93 Hawai'i 399, 404 , 4 P.3d 533, 538 (App.2000).

2001In this regard, we note generally that a defendant is “entitled to an instruction on every defense supported by the evidence, no matter how inconclusive the evidence may be, provided that evidence would support consideration of that issue by the jury.” State v. McMillen, 83 Hawai'i 264, 265 , 925 P.2d 1088, 1089 (1996); see also State v. Ortiz, 93 Hawai'i 399, 404 , 4 P.3d 533, 538 (App.2000).

2001In this regard, we note generally that a defendant is “entitled to an instruction on every defense supported by the evidence, no matter how inconclusive the evidence may be, provided that evidence would support consideration of that issue by the jury.” State v. McMillen, 83 Hawai'i 264, 265 , 925 P.2d 1088, 1089 (1996); see also State v. Ortiz, 93 Hawai'i 399, 404 , 4 P.3d 533, 538 (App.2000).

2001In this regard, we note generally that a defendant is “entitled to an instruction on every defense supported by the evidence, no matter how inconclusive the evidence may be, provided that evidence would support consideration of that issue by the jury.” State v. McMillen, 83 Hawai'i 264, 265 , 925 P.2d 1088, 1089 (1996); see also State v. Ortiz, 93 Hawai'i 399, 404 , 4 P.3d 533, 538 (App.2000).

2000See State v. Alston, 75 Haw. 517, 529 , 865 P.2d 157, 164 (1994).

2000See State v. Alston, 75 Haw. 517, 529 , 865 P.2d 157, 164 (1994).

2000Moreover, the explicit language of subsection (3) of HRS § 703-302 states, in relevant part, that in an escape situation, the choice of evils defense is available if, inter alia, “there is no time or opportunity to resort to the courts” and “[t]he actor promptly reports to the proper authorities when the actor has attained a position of safety from the immediate threat.” (Emphasis added.) Subsection (3) was added to the HRS § 703-302 choice of evils defense in 1986 to codify the holding of the Hawai'i Supreme Court in State v. Horn, 58 Haw. 252 , 566 P.2d 1378 (1977).

2000Moreover, the explicit language of subsection (3) of HRS § 703-302 states, in relevant part, that in an escape situation, the choice of evils defense is available if, inter alia, “there is no time or opportunity to resort to the courts” and “[t]he actor promptly reports to the proper authorities when the actor has attained a position of safety from the immediate threat.” (Emphasis added.) Subsection (3) was added to the HRS § 703-302 choice of evils defense in 1986 to codify the holding of the Hawai'i Supreme Court in State v. Horn, 58 Haw. 252 , 566 P.2d 1378 (1977).

1998See People v. Metters, 61 Cal.App.4th 1489 , 72 Cal.Rptr.2d 294 , 303 (1998) (applying common law choice of evils defense elements in the absence of an applicable statute); State v. Crawford, 308 Md. 683 , 521 A.2d 1193, 1200-01 (1987) (applying the common law choice of evils defense in the absence of a statute); State v. Champa, 494 A.2d 102, 104 (R.I.1985) (quoting common law choice of evils defense in the absence of an applicable statute). .

1998See People v. Metters, 61 Cal. App.4th 1489 , 72 Cal.Rptr.2d 294 , 303 (1998) (applying common law choice of evils defense elements in the absence of an applicable statute); State v. Crawford, 308 Md. 683 , 521 A.2d 1193, 1200-01 (1987) (applying the common law choice of evils defense in the absence of a statute); State v. Champa, 494 A.2d 102, 104 (R.I. 1985) (quoting common law choice of evils defense in the absence of an applicable statute). [11] To the extent that we have found error with the instruction given in this case, we declare Hawai`i Jury Instruction 7.12 to be an erroneous statem

1998State v. Marley, 54 Haw. 450, 471-72 , 509 P.2d 1095, 1109 (1973). [9] Under the common law approach, the choice of evils defense is not applicable in three situations (the Marley test): (1) Where there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law.... (2) A closely related required element is that the harm to be prevented be imminent.... (3) Thirdly, and most importantly, even assuming arguendo that alternative courses of action were "unavailable" ... defendants remain unentitled to the defense of "

1998State v. Marley, 54 Haw. 450, 471-72 , 509 P.2d 1095, 1109 (1973). [9] Under the common law approach, the choice of evils defense is not applicable in three situations (the Marley test): (1) Where there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law.... (2) A closely related required element is that the harm to be prevented be imminent.... (3) Thirdly, and most importantly, even assuming arguendo that alternative courses of action were "unavailable" ... defendants remain unentitled to the defense of "

1998See People v. Metters, 61 Cal. App.4th 1489 , 72 Cal.Rptr.2d 294 , 303 (1998) (applying common law choice of evils defense elements in the absence of an applicable statute); State v. Crawford, 308 Md. 683 , 521 A.2d 1193, 1200-01 (1987) (applying the common law choice of evils defense in the absence of a statute); State v. Champa, 494 A.2d 102, 104 (R.I. 1985) (quoting common law choice of evils defense in the absence of an applicable statute). [11] To the extent that we have found error with the instruction given in this case, we declare Hawai`i Jury Instruction 7.12 to be an erroneous statem

1998See People v. Metters, 61 Cal. App.4th 1489 , 72 Cal.Rptr.2d 294 , 303 (1998) (applying common law choice of evils defense elements in the absence of an applicable statute); State v. Crawford, 308 Md. 683 , 521 A.2d 1193, 1200-01 (1987) (applying the common law choice of evils defense in the absence of a statute); State v. Champa, 494 A.2d 102, 104 (R.I. 1985) (quoting common law choice of evils defense in the absence of an applicable statute). [11] To the extent that we have found error with the instruction given in this case, we declare Hawai`i Jury Instruction 7.12 to be an erroneous statem

1998See United States v. Bailey, 444 U.S. 394, 409-10 , 100 S.Ct. 624 , 62 L.Ed.2d 575 (1980) ("While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils.") A natural and common definition to the term "necessary," in the context of a choice of evils defense, is that "if there was a reasonable, legal alternative to violating the law, a chance both to refuse t

1998See United States v. Bailey, 444 U.S. 394, 409-10 , 100 S.Ct. 624 , 62 L.Ed.2d 575 (1980) ("While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils.") A natural and common definition to the term "necessary," in the context of a choice of evils defense, is that "if there was a reasonable, legal alternative to violating the law, a chance both to refuse t