Self-defense and the emphasis on the defendant’s subjective belief that deadly force is necessary

 In re: DM (HSC March 15, 2023)

Background. The prosecution charged a minor, DM, with attempted assault in the first degree. The family court held a bench trial. The facts are largely undisputed. A group of teenagers got together one night at Hau Bush in Ewa Beach. It was dark and illuminated primarily by open car and truck doors. Most of the kids were drinking. DM and his cousin went to the party and met some girls there. As DM was talking, the complainant intervened. He was shirtless and looked sketchy. DM told him to leave. He did, but soon came back and harassed a girl talking with DM. DM stood up for her and the complainant challenged DM to fight. DM said he did not want to cause trouble and asked him to leave. He would not, and asked where he was from. When DM said he was from Kalihi, they started arguing.

 

It got physical when the complainant rushed at DM and punched him several times. DM fought back. The complainant’s friends and others jumped in to pull them apart. The complainant’s friends tried to restrain him, but he would not listen, broke from their grasp and rushed at DM again. He punched DM and tackled him to the ground. They wrestled on the ground. Others intervened. Someone grabbed DM and walked away with him while others tried to settle the complainant down. Then other fights broke out making Hau Bush “chaotic” and rowdy.

 

DM lost his cousin. He went to his cousin’s car and picked up a knife. He faced the crowd a few feet from his car. It had only been 10 to 15 seconds when he held the knife and said, “who like get stab?”

 

The crowd backed off except for the complainant. He broke free from his friend, lunged at DM, and tackled him to the ground. DM never moved from his spot next to his cousin’s car. The complainant landed on top of DM, punched him. DM held his arms over his face. The complainant rolled off him because DM stabbed him once in the abdomen. DM got up, found his cousin, told him he “accidentally” stabbed someone. They drove away.

 

DM testified at his trial. He explained that when the complainant attacked him and got him to the ground the first time, another kid punched his head. He was “side-blinded from somebody else.” He was scared. He went to his cousin’s car and got the knife. DM testified that after warning folks, he heard the complainant yell “I no give a fuck if you have the knife” and attacked him a second time. DM was on his back as the complainant was punching him. He testified that he stabbed the complainant, but it was in self-defense.

 

The family court, with the Hon. Judge Brian A. Costa presiding, rejected his defense and found that his use of deadly force was not objectively reasonable. The family court found that the use of deadly force included not just the stabbing, but the moments before when he asked the crowd who wanted to get stabbed. The family court found that DM could have waited in the vehicle or leave in complete safety. DM appealed. The ICA affirmed, but Judge Karen T. Nakasone dissented. DM petitioned for certiorari.

 

The use of deadly force is in the use, not in the moments before. The HSC first examined when deadly force was used. 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 erred in finding that the brandishing of the knife and asking who wanted to get stabbed was part of the use of deadly force. See State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 95 (1990) (defendant’s perspective relevant “at the time [they] tried to defendant [themselves]” with deadly force). Moreover, “[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 HSC held that DM intended to create apprehension that, if necessary, he would use deadly force. He was just attacked by the complainant and others in the crowd. He testified he wanted them to back off and stayed in one spot by his cousin’s car when he showed them the knife and asked “who like get stab?” This was the apprehension he was entitled to use under HRS § 703-300. The HSC held that DM did not use deadly force when he got the knife and told the crowd to back off.

 

The duty to retreat is subjective and based on the defendant’s perspective. The defendant does not have a duty to retreat before using deadly force unless the defendant “knows that [they] can avoid the necessity of using such force with complete safety by retreating.” HRS § 703-304(5)(b). The HSC held that this is a subjective inquiry. State v. Mark, 123 Hawai'i 205, 226, 231 P.3d 478, 499 (2010).

 

The HSC held that the family court did not consider if DM knew he could retreat with complete safety. There was no evidence showing that DMR knew he could sit in the car or leave the area with complete safety. See State v. Augustin, 101 Hawai'i 127, 128, 63 P.3d 1097, 1098 (2002) (defendant has knowledge of circumstances only when aware of them). Moreover, the family court erred in finding that DM had a duty to retreat when he brandished the knife. The HSC disagreed and held that the duty to retreat did not arise until the complainant broke free from his friends and rushed at DM a second time. DM had no legal duty to retreat before then. Moreover, nothing in the record shows that DM knew he could retreat with complete safety without using deadly force.

 

Deadly force combines subjective and objective assessments. The use of deadly force for self-defense is justified “if the actor believes that deadly force is necessary to protect [themselves] against death, serious bodily injury, kidnapping, rape, or forcible sodomy.” HRS § 703-304(2). “Believes” means “reasonably believe.” HRS § 703-300.

 

This is a two-step inquiry. First, the factfinder must determine if the defendant subjectively believed that deadly force was necessary. If so, the factfinder then determines if that belief is objectively reasonable. In assessing reasonableness, the factfinder measures it “from the point of view of a reasonable person in the Defendant’s position under the circumstances as [they] believed them to be.” State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990). See also State v. Lubong, 77 Hawai'i 429, 433, 886 P.2d 766, 70 (App. 1994).

 

The HSC held that the family court disregarded DM’s subjective perspective when evaluating the reasonableness of his belief. Here is how the HSC described it:

 

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.

 

The ICA in Lubong described it as the factfinder placing itself “in the shoes of the defendant[.]” Id. The HSC was “unconvinced” that the family court did that and vacated the adjudication order.

 

Chief Justice Recktenwald’s dissent. The Chief Justice dissented. He pointed out that a key part of the factfinder’s job is to also assess the credibility of the defendant when providing evidence of the self-defense claim. State v. Lealeao, 126 Hawai'i 460, 470, 272 P.3d 1227, 1232 (2012). Credibility is central here. The prosecution disproves self-defense claims “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, 978 (2005). In this case, the family court made credibility determinations and ultimately found that the prosecution met its burden in disproving DM’s self-defense claim. The appellate court should “not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence[.]” State v. Jenkins, 93 Hawai'i 87, 101, 997 P.2d 13, 27 (2000).

 

The CJ took issue with the way the majority examined the family court’s findings. Trial judges are “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, 304-305, 349 P.3d 406, 411-412 (App. 2015). The family court is not required to be as detailed as the majority demands. Finally, the CJ believed that the family court did not err in determining that a reasonably prudent person in the same situation as DM would not have believed that deadly force was necessary. The CJ would have affirmed. Justice Nakayama joined.