The use of deadly force must be necessary—not immediately necessary.

By Benjamin Lowenthal -

 State v. Reis (ICA February 27, 2025)

Background. Brandon Reis was on trial for attempted murder in the second degree. At trial, he argued he acted in self-defense. The trial court instructed the jury about the use of lethal force in self-defense by tracking the pattern jury instruction:

 

The use of deadly force upon or toward another person is justified if the defendant reasonably believes that deadly force is immediately necessary to protect himself on the present occasion against death or serious bodily injury or kidnapping. The reasonableness of the defendants’ belief that the use of deadly force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be when the deadly force was used.

 

The jury found Reis guilty as charged. He appealed.

 

The jury was incorrectly instructed that the defendant must believe deadly force was “immediately” necessary. The sole issue came down to the jury instruction. The jury was told that Reis’s belief in using deadly force had to be “immediately necessary.” But “[t]he 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.” HRS § 703-304(2). The use of non-lethal force needs to be “immediately necessary.” HRS § 703-304(1).

 

The Hawaii Supreme Court noted the problematic jury instruction in In re: DM, 152 Hawai'i 469, 477 n. 13, 526 P.3d 446, 454 n. 13 (2023). But that was dictum.

 

The ICA held that the self-defense instruction here misstates the plain language in HRS § 703-304(2) and was contrary to the legislative intent. The ICA delved into the legislative history and noted that the House Judiciary Committee back in 1975 explained that “[a]dding the requirements that a person being attacked determine the immediacy of the need to use deadly force presents [too] great a burden upon that person. Such a person is already forced into a position of fear and apprehension that would make a reasoned determination of immediacy impossible.” H. Stand. Cmm. Rep. No. 720, Hse. Journal at 1306-07 (1975).

 

The trial court, therefore, erred by telling jurors that the belief in using deadly force had to be “immediately necessary.”

 

The error is not harmless. Having found an erroneous instruction, the ICA moved on to determine if “there [was] a reasonable possibility that the error contributed to the defendant’s conviction.” State v. Nichols, 111 Hawai'i 327, 337, 141 P.3d 974, 984 (2006). The ICA examined the evidence at trial and held that the jury could have found that although Reis’s use of deadly force may not have been immediately necessary, it could have been just necessary. And so the erroneous instruction was not a harmless error.

 

The ICA vacated the case for a new trial.

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