State v. Kikuta(HSC June 8, 2011)
Background. Cedric Kikuta was charged with assault in the second degree. HRS § 707-711(1). And Assault in the third degree. HRS § 707-712. At trial, his stepson, Justin, testified that when he was fourteen at the time of the incident. He was watching t.v. with his cousin, Chad, when Kikuta told him to feed the dog. He did. Then Kikuta noticed that the dog left a "stain" on the carpeted floor. Justin told him that he couldn't get the stain out. Kikuta said that if he could get it out, Justin is grounded for a year. Justin countered that if Kikuta could not, he could kick Kikuta's leg. Kikuta's leg was in a cast because he was recovering from surgery and walked around in crutches. Kikuta agreed. Kikuta left Justin's room. Then, according to Justin, Kikuta burst back into his room and started to push him. Justin grabbed one of the crutches and tried to get away. Kikuta then punched Justin in the face and head several times. Ultimately, Justin's face was swollen and his tooth was chipped. On cross-examination, Justin admitted that while it may have looked like he was going to hit Kikuta with the crutch, he wasn't going to. Chad, the cousin, also testified. Chad's testimony corroborated most of Justin's, and confirmed that Justin grabbed the crutch in a defense way. Kikuta testified. Kikuta testified that Justin was not following his instructions to feed the dog and clean up after its mess. Justin was being difficult and argumentative. He also testified that he did not notice Justin's injuries after hitting him. According to him, Justin was swinging the crutch at him and hit him a few times.
The family court refused to instruct the jury on parental discipline as a defense on the grounds that Kikuta caused substantial bodily injury. The family court also refused to give a mutual affray instruction accompanying the lesser-included assault in the third degree charge. The ICA vacated and remanded on the grounds that the parental discipline and mutual affray instructions should have been given. The prosecution petitioned for certiorari.
The Parental Discipline Defense. The parental discipline defense is composed of two elements:
The use of force upon or toward the person of another is justifiable under the following circumstances:
(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor, or a person acting at the request of the parent, guardian, or other responsible person, and:
(a) The force is employed with due regard for the age and size of the minor and is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and
(b) The force used is not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.
HRS § 703-309(1)(a).
The Defense is Available if it Resulted in Substantial Bodily Injury, not Intended. The HSC examined the language of the section regarding the use of force. According to the HSC, the language plainly and unambiguously precludes the defense if the force was intended to cause substantial bodily injury. It does not, however, preclude the defense if the force resulted in substantial bodily injury. Thus, according to the HSC, there are cases where the conduct is justified that results in substantial bodily injury. The circuit court erred in refusing to instruct the jury on parental discipline. Here, there was some evidence that Kikuta pushed Justin harder than he intended to because he was off balance. He further testified that he punched Justin because he wanted him to let go of his crutch and was not aiming for his face. Concluding that Kikuta hit Justin in order to cause substantial bodily injury is for the jury to decide. State v. Juhn, 83 Hawai'i 472, 483, 927 P.2d 1355, 1366 (1996). A defendant is "entitled to have the trier of fact consider a defense having any support in the evidence no matter how weak, inconclusive, or unsatisfactory the evidence" may be. State v. Riveira, 59 Haw. 148, 153, 577 P.2d 793, 797 (1978).
The Error is Not Harmless. The HSC also rejected the prosecution's argument that the failure to give the instruction was harmless. An error is not harmless beyond a reasonable doubt if "there is a reasonable possibility that it might have contributed to . . . the conviction." See State v. Roman, 119 Hawai'i 468, 482, 199 P.3d 57, 71-72 (2008). The HSC noted that this was a jury trial. There is absolutely no way to determine how the jury would have resolved the conflicting evidence with the parental discipline instruction. Thus, there was a reasonable possibility that the failure to give the instruction might have contributed to the conviction.
Mutual Consent, the "Mitigating" Defense. Kikuta was also found guilty of assault in the third degree. Assault in the third degree is a "misdemeanor unless committed in a fight or scuffle entered into by mutual consent." HRS § 707-712(2). Then it becomes a petty misdemeanor. Id. The family court did not give an instruction on mutual affray. The ICA concluded that that failure to instruct was plain error. The HSC agreed with the ICA.
Defining Mutual Consent. The HSC held that there was some evidence of a mutual consent, a term that is undefined in the Hawai'i Penal Code. When there is no statutory definition, courts "[r]esort to legal or other well accepted dictionaries as one way to determine the ordinary meaning of certain terms." State v. Kalama, 94 Hawai'i 60, 63 n. 6, 8 P.3d 1224, 1227 n. 6 (2000). "Mutual" means "reciprocal" or "belonging to two parties." Black's Law Dictionary 1115 (9th ed. 2009). "Consent" includes an "[a]greement, approval or permission as to some act[.]" Id. at 346. Consent can be express or implied from conduct. Id.; see also State v. Hanson, 97 Hawai'i 71, 75, 34 P.3d 1, 5 (2001). The HSC held that a "mutual consent" "requires both parties to have approved of, or agreed to, a fight or scuffle, whether expressly or by conduct."
Here, according to the HSC, there was some evidence of a mutual affray. There was evidence that Kikuta pushed Justin and that Justin responded by swinging the crutch at him. It could be implied that the parties agreed to a fight. That should have prompted the family court to instruct the jury on mutual affray, even though it was never raised.
Judge Wilson's Concurrence. Judge Wilson wrote separately. He expressly pointed out that his concurrence was not in any way a limitation of the majority he formed with Justices Acoba and Duffy. He wrote separately to reiterate the holding of the majority. Judge Wilson believed that in refusing to instruct the jury on the parental discipline defense, the family court deprived Kikuta of his right to a fair trial by jury. He noted that the prosecutor in this case was able to portray Kikuta as a father figure who could not have punched his son in self defense. During the closing argument, the prosecutor told the jurors that they should reject Kikuta's self-defense argument because what he was really doing was disciplining Justin. "Legally barred from taking the very position argued by the prosecutor, [Kikuta's] chosen defense was gutted."
Justice Nakayama's Dissent. Justice Nakayama believed that the was no evidence supporting a parental discipline instruction. An "angry moment driving moderate or reasonable discipline is often part and parcel of the real world of parenting with which prosecutors and courts should not interfere." State v. Matavale, 115 Hawai'i 149, 166, 166 P.3d 322, 339 (2007). The force used by a parent must "reasonably be proportional to the misconduct being punished[.]" Id. at 164, 166 P.3d at 337. Moreover, "the viciousness of the attack" can sever "any relationship between the use of force and the welfare of [a minor] which might be considered 'reasonable.'" State v. Roman, 119 Hawai'i 468, 481, 482, 199 P.3d 57, 70, 71 (2008). Justice Nakayama wrote that Justin misbehaved by not putting the dog food away, slamming a glass door, ignoring Kikuta, and swinging a crutch at him. The use of force employed by Kikuta in response to this misbehavior was unreasonable. Moreover, Justice Nakayama wrote that the failure to give the instruction was harmless because there was no reasonable possibility that Kikuta's conduct arose to parental discipline.Justice Nakayama also believed that the family court was not required to give a mutual affray instruction sua sponte. The trial court did not have a duty instruct the jury on a defense that was not supported by the evidence, not raised by Kikuta, and "clearly peripheral to Kikuta's defense at trial." Justice Nakayama agreed with the majority's definition of "mutual consent" but held that there was no evidence supporting that standard. She pointed out that the mere fact that a fight occurred does not prove an agreement to fight. See State v. Schroder, 359 N.W.2d 799, 804-05 (Neb. 1984). Secondly, Justice Nakayama disagreed with the majority that the trial court had to sua sponte provide the mutual consent instruction. She wrote that the majority's holding would mean that in any case involving a fight, the trial court would have to summarily provide a mutual consent instruction. This rule, according to Justice Nakayama, "is much too broad and far-reaching." Chief Justice Recktenwald joined.