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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               28-JUN-2019
                                                               08:43 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---oOo---
________________________________________________________________

          STATE OF HAWAII, Respondent/Plaintiff-Appellee,

                                     vs.

       DEAN VICTOR MATUU, Petitioner/Defendant-Appellant.
________________________________________________________________

                             SCWC-XX-XXXXXXX

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-XX-XXXXXXX; CR. NO. 15-1-0128)

                               JUNE 28, 2019

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY McKENNA, J.

                             I.   Introduction

     On April 29, 2016, a jury convicted Petitioner/Defendant-

Appellant Dean Victor Matuu (“Matuu”), who had been indicted on

charges of Murder in the Second Degree in violation of Hawaiʻi

Revised Statutes (“HRS”) §§ 701.5 and 706-656 (2014), of the
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lesser included offense of Assault in the First Degree, HRS §

707-710 (2014), for stabbing his cousin Frank Kapesi (“Frank”)

on January 25, 2015 at a home Matuu and Frank shared with other

family members.

      This appeal arises from Matuu’s challenge that his

conviction was not supported by substantial evidence and that

the circuit court’s jury instructions were prejudicially

erroneous or misleading.         The ICA affirmed the Circuit Court of

the First Circuit’s (“circuit court[’s]”) Judgment of Conviction

and Sentence,1 concluding in relevant part that there was

substantial evidence to support the jury’s verdict and that the

jury instructions, when viewed as a whole, were not

prejudicially insufficient, erroneous, inconsistent, or

misleading.      See State v. Matuu, No. CAAP-16-571 (App. Sep. 29,

2017) (SDO).

      For the following reasons, the ICA correctly concluded that

Matuu’s conviction on the lesser included offense of Assault in

the First Degree was supported by substantial evidence and that

the circuit court’s jury instructions, as a whole, were not

prejudicially erroneous or misleading.            However, the basis upon

which the ICA had concluded “the [circuit] court sufficiently

instructed the jury regarding unanimity” and that therefore

“[t]he additional unanimity instruction requested by Matuu was
1
      The Honorable Glenn J. Kim presided.


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unnecessary,” Matuu, SDO at 10–11, is erroneous.            The general

unanimity instruction as to the elements, cited to by the ICA,

did not include the requirement that the prosecution negative

justification defenses as an element of the offense.

Nevertheless, the circuit court’s justification instructions and

the general “unanimous verdict” instruction did require for a

conviction jury unanimity that the prosecution meet its burden

of proving beyond a reasonable doubt that it negatived Matuu’s

justification defenses.      The justification instruction made

clear that the prosecution had the burden of disproving the

self-defense and defense-of-other defenses beyond a reasonable

doubt, and the general unanimous verdict instruction made clear

that the verdict had to be unanimous, which would include the

prosecution’s burden to negative the defenses beyond a

reasonable doubt.

    Accordingly, although the ICA erred in concluding that the

elements instruction addressed the unanimity required to

disprove the justification defenses, the instructions as a whole

were not insufficient, erroneous, inconsistent, or misleading.

We therefore affirm the ICA’s Judgment on Appeal that affirms

the circuit court’s Judgment of Conviction and Sentence.             The

requirement of unanimity beyond a reasonable doubt as to the

negativing defenses element would have been much clearer to the

jury if the justification defense instructions had specifically

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included the unanimity requirement.            We therefore provide

guidance that circuit courts should do so in the future.

                                II.   Background

A.     Factual Background

       From 2013 when Matuu was seventeen years old, he shared a

home with his cousins, Frank2 and Kapesi Kapesi, and two uncles.

Matuu and Frank shared a living space, which was separated by a

chest of drawers, television set, other furniture, and a tarp.

       Frank was often “high” on drugs.          Additionally, he had been

belligerent with other family members in the past.               Testimony

regarding three instances between 2013 and 2014 of Frank’s

belligerent behavior were provided at trial.

       First, during a family party in 2013 while Kapesi was

dancing to music, Frank punched Kapesi in the face for “no

reason,” requiring family members to take Kapesi to a hospital

for stitches.       The incident caused Matuu, who was still in high

school at the time, to fear Frank as he “kn[e]w for sure that

[Frank] [could] do that to anybody and to me, too.”

       Second, in November 2014, Frank directly accosted Matuu

after Matuu returned from playing basketball, telling Matuu, “I

going beat you up.”         Nothing came of the incident as Matuu, who



2
      Although Frank was referred to as “Uncle Frank” by Kapesi, testimony
showed that Frank was Matuu’s cousin.



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did not know why Frank was mad, told Frank he did not want to

fight and then returned to the park.

      Third, in December 2014, after hearing a sudden “crashing

in front of the garage” as if “something broke,” Matuu came out

of his room and saw one of his uncles get up from the sidewalk

as Frank walked away.        The incident scared Matuu.

      In the afternoon of January 23, 2015, when Matuu returned

home around three or four o’clock, it was apparent to Matuu that

Frank was high on drugs.         Later, without interacting with Frank,

Matuu helped an uncle’s girlfriend prepare a meal in a slow

cooker.     Matuu then returned to his room.

      Around six in the evening after drinking one or two shots

of Ciroc3 with Kapesi, Matuu went to a friend’s house down the

road and smoked some marijuana.          Matuu returned home around four

or five in the morning on January 24, 2015.

      Upon returning home, Matuu went to the kitchen to scoop

food out of the slow cooker.         According to Matuu, as he was

doing so, Frank accosted him:

             [T]hat’s when all of a sudden Mr. Frank Kapesi . . .
             approached me over here, and I seen him with my side -- my
             side vision, and he came to me, and he was like, “Oh, you
             fucka. Why you gotta come and eat all the food? Why you
             gotta eat the food for?” I was looking at him. “Bro, I’m
             not eating all the food. There’s still food in there. I
             made this food. I helped somebody make this food.” But,
             no, he got angry at me. I don’t even know what I did to
             him, but he got mad. After I was making the food, he was
             still approaching me. “Fucka, I telling you why you gotta
             eat all the food?”
3
      Ciroc is a brand of vodka.


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Matuu then retreated to his room, but Frank followed him and

kept yelling at him.      According to Matuu,

           he was telling me, “Oh, you don’t hear me, you fucka?” I
           was telling him, “Bro, I’m not even -- I’m not even trying
           to argue with you.” I’m just trying to make my food. I
           was feeling good, buzzing, and I wanted to have a good time
           because I just came from a friend’s house. And after that,
           he was still yelling at me. “Oh, you fucka. Fuck you. I
           going beat you up and I’ll put you in the hospital.” And
           after that, I was like, “Bro.” Then I came around. Came
           around, put my plate on the stool, came around and I stand
           right here. And I was telling him -- I was trying to tell
           him nicely, trying to calm him down, trying to kiss ass
           because I know he can hurt me, or he can beat me up. I was
           telling him, “Bro, why you gotta – why you gotta yell at
           me? Why you gotta -- why you gotta say this kind of stuff
           to me?” But, no, he didn’t -- he wasn’t even calm down.
           He was already mad at me.

    Matuu was “scared” during the verbal confrontation.              Matuu

surmised that Frank must have seen that Matuu was fearful and

began punching Matuu.      At first, Matuu blocked Frank’s punches;

ultimately Matuu grabbed and wrestled with Frank.            While they

wrestled, Matuu thought that Frank “was gonna beat me up because

he was telling me he was going to put me in the hospital.”

Matuu also “was hoping that [Frank] wouldn’t get mad,” but Frank

nevertheless “was getting mad” while they wrestled.

    Kapesi, who had heard Matuu and Frank argue about the food,

came out of his room when he heard something break.            When Kapesi

found them wrestling on top of each other near Frank’s bed, he

“jumped in . . . to break them apart.”          According to Kapesi,

Frank grabbed Kapesi, slammed him to the ground where he lost

his breath, and was on top of, but did not punch, Kapesi.


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    In the meantime, Matuu was “scared” when Frank had slammed

Kapesi to the ground.      According to Matuu, Frank was punching

Kapesi.    Matuu thought that Frank would come after him when

Frank was “done with” Kapesi, and therefore Matuu needed to

“protect[] himself.”      Thus, when Matuu had “br[oken] free” while

Frank was on top of Kapesi, he went to the kitchen and grabbed a

steak knife.

    According to Matuu, when he came back from the kitchen,

Frank was still on Kapesi, so Matuu stabbed Frank once “on the

side” to “stop him” because he knew Frank was strong and

violent.    After stabbing Frank, Matuu said to Frank: “I told

you, bro.    I told you to stop, but you was pushing me, and you

was bothering me, and you was telling me you was going beat me

up and put me in the hospital.”

    However, according to Kapesi, after he got his wind back,

he stood between Matuu and Frank and yelled, “Stop already.

Enough.”    Kapesi saw Matuu return “fast” from the kitchen area.

Kapesi then put his hand up to stop Matuu from swinging at Frank

and received a cut on his hand.           Kapesi was in shock, tended to

his cut for about thirty seconds, and the “next thing [he] knew,

Frank was on the ground” gasping for air.

    An autopsy of Frank’s body showed multiple blunt force

injuries, four stab wounds of the torso, and two incised wounds,

i.e., wounds that are longer on the surface of the skin than

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they are deep.        A knife blade was found within a wound track

that perforated the left lung and the pulmonary artery.                Another

knife blade was found at the scene near Frank’s body, although

Matuu testified that he recalled grabbing only one knife.                   A

toxicology report showed that methamphetamine and amphetamine

were present in Frank’s blood.

B.     Procedural Background

       Opening statements were made on April 26, 2016, and trial

continued on April 28 and 29, 2016.            After closing arguments,

the jury was instructed in relevant part to “consider all of the

instructions as a whole and consider each instruction in light

of all of the others”; to “presume the defendant is innocent of

the charge against him” as “the prosecution has the duty of

proving every material element of the offense charged against

the defendant beyond a reasonable doubt”; and that “[i]n order

for the prosecution to prove an element, all twelve jurors must

unanimously agree that the same act has been proved beyond a

reasonable doubt.”

       The jury was then instructed on the “material elements” of

Murder in the Second Degree and all of its included offenses,

“each of which the prosecution must prove beyond a reasonable

doubt.”      The circuit court further instructed that “[s]elf-




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defense is a defense to the charge of Murder in the Second

Degree and all of its included offenses.”4            Specifically:

             Self-defense involves consideration of two issues. First,
             you must determine whether the defendant did or did not use
             “deadly force.” Second, you must determine whether the
             force used was justified. The burden is on the prosecution
             to prove beyond a reasonable doubt that the force used by
             the defendant was not justified. If the prosecution does
             not meet its burden, then you must find the defendant not
             guilty.

             . . . .

                   If you determine that the defendant used “deadly
             force,” then you are to proceed to the section in this
             instruction entitled “Deadly Force Used.” If you determine
             that the defendant did not use “deadly force,” then you are
             to proceed to the section in this instruction entitled
             “Deadly Force Not Used.” You must then follow the law in
             the applicable section to determine the second issue, which
             is whether the force used by the defendant was justified.

(Emphasis added.)       The circuit court similarly instructed that

“[d]efense[-]of[-]others is a defense to the charge of Murder in

the Second Degree and all of its included offenses,” and gave

similar instructions regarding the “issues” the jury was to

consider.5     The circuit court also instructed that “[a] verdict

must represent the considered judgment of each juror, and in




4
      Matuu had requested a self-defense instruction. “[A] defendant is
entitled to a requested jury instruction on a defense when he presents some
evidence going to the defense.” State v. Taylor, 130 Hawaiʻi 196, 207, 307
P.3d 1142, 1153 (2013) (citing State v. Stenger, 122 Hawaiʻi 271, 226 P.3d 441
(2010)).
5
      Matuu did not propose a defense-of-others instruction. The circuit
court, however, correctly gave an instruction on this justification defense.
See Taylor, 130 Hawaiʻi at 207, 307 P.3d at 1153 (holding that if a defendant
does not request a defense instruction, a circuit court’s failure to instruct
on such a defense where there is evidence of the defense upon which a
reasonable juror could harbor a reasonable doubt as to the defendant’s guilt,
will be reviewed for plain error).


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order to reach a verdict, it is necessary that each juror agree

thereto.      In other words, your verdict must be unanimous.”

       Matuu’s proposed self-defense instruction, which was

rejected by the circuit court, differed in relevant part from

the circuit court’s given instruction, as it had proposed to

clearly instruct the jury that its determination as to whether

the defendant used “deadly force” be unanimous by adding the

following underlined language:

                    If you unanimously determine beyond a reasonable
              doubt that the defendant used “deadly force,” then you are
              to proceed to the section in this instruction entitled
              “Deadly Force Used.” If you determine that the defendant
              did not use “deadly force,” or are unable to reach
              unanimous agreement on this issue, then you are to proceed
              to the section in this instruction entitled “Deadly Force
              Not Used.” You must then follow the law in the applicable
              section to determine the second issue, which is whether the
              force used by the defendant was justified.

       On April 29, 2016, a jury convicted Matuu of the lesser

included offense of Assault in the First Degree, a violation of

HRS § 707-710.6       He was sentenced to five years of incarceration

as a young adult defendant and ordered to pay restitution and

fees.

C.     Appeal to the ICA

       Matuu timely filed a Notice of Appeal to the ICA, and

presented two points of error:




6
      “Assault in the first degree. (1) A person commits the offense of
assault in the first degree if the person intentionally or knowingly causes
serious bodily injury to another person. . . .” HRS § 707-710 (2014).


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           A.    There was no substantial evidence to support Matuu’s
           conviction where the State did not prove beyond a
           reasonable doubt facts negating his justification defenses.

           B.    Matuu’s conviction must be vacated where the Circuit
           Court’s instruction on the use of deadly force in self-
           protection was prejudicially erroneous and misleading.

    On the first issue, Matuu argued that the evidence at trial

established that Matuu subjectively believed that his use of

force was necessary in self-defense and that such belief was

objectively reasonable.      Matuu pointed to the fact that Frank

abused drugs often and did so on the night in question,

exhibited volatile behavior, and in three prior instances, Frank

behaved belligerently or violently toward either Matuu or

another family member.      Additionally, because Matuu had seen

Frank punch Kapesi in the past, “Matuu reasonably believed that

Kapesi would have been justified in using deadly force to

protect himself from Frank’s attack” when Frank had slammed

Kapesi to the ground, thereby supporting Matuu’s defense-of-

others justification.

    On the second issue, Matuu asserted that the circuit

court’s self-defense instruction, which omitted Matuu’s proposed

language regarding unanimity and the prosecution’s “beyond a

reasonable doubt” burden of proof, was erroneous because “the

jury may not have unanimously determined beyond a reasonable

doubt that Matuu had used ‘deadly force’ . . . .            The erroneous

instructions were not harmless as the jury could have then



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rejected self-defense because it found that Matuu could have

used ‘force’ in self-defense, but not ‘deadly force.’”

     The ICA rejected the challenges.         As to the first issue,

the ICA identified substantial evidence in the record showing

that even if Matuu subjectively believed that his use of force

was necessary in self-defense, that belief was not reasonable

because evidence showed that Frank was stabbed multiple times

with two knives, and such force was not necessary for self-

defense when Frank was unarmed.        See Matuu, SDO at 6.

     As to the second issue, the ICA noted that the instruction

for assault in the first degree necessitated a finding that

Matuu had used “deadly force.”        Additionally, as jury

instructions are to be considered as a whole, see Matuu, SDO at

10 (citing Samson v. Nahulu, 136 Hawaiʻi 415, 425, 363 P.3d 263,

273 (2015)), the ICA concluded the jury instructions included

appropriate unanimity instructions.         For example, the ICA

observed that the jury was explicitly instructed that “in order

to convict, the jury must unanimously agree to each element of

the crime beyond a reasonable doubt,” and that “‘[t]he burden is

on the prosecution to prove beyond a reasonable doubt that the

force used by the defendant was not justified.           If the

prosecution does not meet its burden, then you must find the




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defendant not guilty.’”        Matuu, SDO at 11.7      According to the

ICA, the jury was also given a general unanimity instruction.

See Matuu, SDO at 10.        Accordingly, the ICA concluded that

Matuu’s instruction using additional unanimity language was not

necessary.      See id.

      Now on appeal to this court, Matuu reasserts the same

questions he had posed to the ICA:

             1.    Whether the ICA gravely erred in holding that there
             was substantial evidence to support Matuu’s conviction
             where the State failed to prove beyond a reasonable doubt
             facts negating his justification defenses?

             2.    Whether the ICA gravely erred in holding that the
             Circuit Court’s jury instruction on the use of deadly force
             in self-protection [and defense-of-others] was
             prejudicially erroneous and misleading?

      For the following reasons, although the ICA erred in

concluding that the elements instruction addressed the unanimity

required to disprove the justification defenses, the

instructions as a whole were not insufficient, erroneous,

inconsistent, or misleading.         We therefore affirm the ICA’s

Judgment on Appeal that affirms the circuit court’s Judgment of

Conviction and Sentence, and provide the following guidance

regarding the inclusion of the unanimity requirement for the

negativing defenses element.




7
      The full text is available on page 21, infra.


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                          III.    Standards of Review

A.     Jury Instructions

              The standard of review for a trial court’s issuance or
              refusal of a jury instruction is whether, when read and
              considered as a whole, the instructions given are
              prejudicially insufficient, erroneous, inconsistent, or
              misleading. Erroneous instructions are presumptively
              harmful and are a ground for reversal unless it
              affirmatively appears from the record as a whole that the
              error was not prejudicial. In other words, error is not to
              be viewed in isolation and considered purely in the
              abstract.

State v. Kassebeer, 118 Hawaiʻi 493, 504, 193 P.3d 409, 420

(2008) (internal quotation marks, citations, and brackets

omitted) (quoting State v. Mainaaupo, 117 Hawaiʻi 235, 247, 178

P.3d 1, 13 (2008)).

B.     Sufficiency of the Evidence

       The appellate court reviews the sufficiency of evidence on

appeal as follows:

              [E]vidence 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 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.

State v. Richie, 88 Hawaiʻi 19, 33, 960 P.2d 1227, 1241 (1998)

(quoting State v. Quitog, 85 Hawaiʻi 128, 145, 938 P.2d 559, 576

(1997)).      “‘Substantial evidence’ as to every material element

of the offense charged is credible evidence which is of

sufficient quality and probative value to enable a person of




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reasonable caution to support a conclusion.”              Id. (internal

quotation marks and citation omitted).

                                 IV.   Discussion

       We proceed by examining Matuu’s second question regarding

jury instructions before proceeding to discuss the first

question regarding substantial evidence.

A.     The ICA Correctly Concluded That the Jury Instructions,
       When Viewed as a Whole, Were Not Prejudicially Erroneous or
       Misleading, Although It Erred by Concluding the Instruction
       Requiring Unanimity in Finding the Elements Included the
       Justification Defenses

       1.     Matuu’s specific concern that the jury may not have
              unanimously agreed that he used “deadly force” lacks
              basis.

       At trial, in relevant part, the parties agreed to the

following instruction regarding Assault in the First Degree

proposed by the court:

                    If and only if you find the defendant, Dean Victor
              Matuu, not guilty of Manslaughter, or you are unable to
              reach a unanimous verdict as to this offense, then you must
              consider whether the defendant is guilty or not guilty of
              the included offense of Assault in the First Degree.

                    A person commits the offense of Assault in the First
              Degree if he intentionally or knowingly causes serious
              bodily injury to another person.

                    There are two material elements of the offense of
              Assault in the First Degree, each of which the prosecution
              must prove beyond a reasonable doubt.

                    These two elements are:

                    1.    That on or about January 24, 2015, in the City
              and County of Honolulu, State of Hawaii, the Defendant
              caused serious bodily injury to Frank Kapesi; and

                    2.     That the Defendant did so intentionally or
              knowingly.



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                 “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.

(Emphasis added.)

    With respect to the justification of self-protection, the

circuit court’s proposed instruction began:

                 Self-defense is a defense to the charge of Murder in
           the Second Degree and all of its included offenses . . . .
           Self-defense involves consideration of two issues. First,
           you must determine whether the defendant did or did not use
           “deadly force.” Second, you must determine whether the
           force used was justified. If the prosecution does not meet
           its burden, then you must find the defendant not guilty.

                 The first issue is: Did the defendant use “deadly
           force?”

                 “Deadly Force” means force which the defendant uses
           with the intent of causing, or which he knows to create a
           substantial risk of causing[] death or serious bodily
           injury.

                 “Force” means any bodily impact, restraint, or
           confinement, or the threat thereof.

                 “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.

Matuu then proposed to add the following underlined language to

the relevant remaining portion of the court’s proposed

instruction:

           If you unanimously determine beyond a reasonable doubt that
           the defendant used “deadly force,” then you are to proceed
           to the section in this instruction entitled “Deadly Force
           Used.” If you determine that the defendant did not use
           “deadly force,” or are unable to reach unanimous agreement
           on this issue, then you are to proceed to the section in
           this instruction entitled “Deadly Force Not Used.”

The circuit court refused Defendant’s proposed instruction.




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      Matuu contends that without the underlined language, e.g.,

“unanimous[ly]” or “beyond a reasonable doubt,” when the jury

proceeded through its instructions regarding self-protection, it

may not have unanimously determined beyond a reasonable doubt

that the defendant had used deadly force.            Matuu asserts that as

a consequence, the jury may have therefore inappropriately

limited the scope of justifiable acts only to those necessary to

protect against death or seriously bodily injury;8 had the jury

instead been unable to unanimously agree beyond a reasonable

doubt that deadly force had been used, then the range of

justifiable acts would include those necessary to protect

against any “unlawful force.”9

      This argument lacks merit.         The ICA correctly noted that

the jury was first instructed on the elements of first degree

assault, which were required to be proven by the prosecution

beyond a reasonable doubt.         See Matuu, SDO at 9.       Specifically,

the jury was required to find beyond a reasonable doubt that (1)

“Defendant caused serious bodily injury to Frank Kapesi,” and

(2) “[t]hat the Defendant did so intentionally or knowingly.”


8
      “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.”
9
      “The use of force upon or toward another person is justified if the
defendant reasonably believes that force is immediately necessary to protect
himself on the present occasion against the use of unlawful force by the
other person.”


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As “deadly force” means “force which the defendant uses with the

intent of causing, or which he knows to create a substantial

risk of causing, death or serious bodily injury,” the elements

of first degree assault inherently require a finding that

“deadly force” was used by Matuu.         Additionally, the jury was

further instructed that the finding as to assault in the first

degree must be unanimous.       Thus, that the jury found Matuu

guilty of assault in the first degree necessarily means the jury

unanimously found beyond a reasonable doubt that Matuu had used

“deadly force.”     Accordingly, Matuu’s specific concern that the

jury may not have unanimously agreed that he used “deadly force”

lacks basis.

    2.     The ICA erred in relying on the circuit court’s
           general unanimity instruction in its analysis.

    We next take a closer examination of the justification

instructions given the nature of Matuu’s issue on appeal,

whether the justification instructions’ lack of an express

unanimity requirement rendered the jury instructions, when

viewed as a whole, prejudicially insufficient, erroneous,

inconsistent, or misleading, and whether it affirmatively

appears from the record as a whole that the error was not

prejudicial.    See Kassebeer, 118 Hawaiʻi at 504, 193 P.3d at 420.

    As provided in HRS § 702-205(b) (2014), the negativing of

certain defenses is an element of an offense:


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           Elements of an offense. The elements of an offense are
           such (1) conduct, (2) attendant circumstances, and (3)
           results of conduct, as:
           (a)   Are specified by the definition of the
                 offense, and
           (b)   Negative a defense (other than a defense
                 based on the statute of limitations, lack of venue,
                 or lack of jurisdiction).

HRS § 702-205.     Thus, the State was required to prove beyond a

reasonable doubt that Matuu’s self-defense or defense-of-others

justification was “negative[d].”          Id.; see HRS § 701-114 (2014)

(“[N]o person may be convicted of an offense unless the

following are proved beyond a reasonable doubt . . . [e]ach

element of the offense . . . .”).

    The circuit court’s general unanimity instruction stated

that “[i]n order for the prosecution to prove an element, all

twelve jurors must unanimously agree that the same act has been

proved beyond a reasonable doubt.”         In addition, the circuit

court instructed the jury that “[t]he burden is on the

prosecution to prove beyond a reasonable doubt that the force

used by the defendant was not justified.”

    However, the general unanimity instruction required only

that all jurors unanimously agree that the same act be proven

beyond a reasonable doubt with respect to an “element” of an

offense.   Although negativing Matuu’s justification defenses is,

as a matter of law, an element of Assault in the First Degree,

see HRS § 702-205(b), the circuit court did not include the

justifications of self-defense or defense-of-others as an


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“element” of Assault in the First Degree.             The circuit court

also did not include in the justifications instructions the

requirement that jurors must unanimously conclude the

prosecution had disproven the defenses beyond a reasonable

doubt.      Thus, it may not have been readily apparent to the

jurors that the general unanimity instruction regarding the

“elements” of an offense applied to the prosecution’s negativing

of Matuu’s self-defense and defense-of-others justifications.

       The ICA did not observe that the unanimity instruction

given by the circuit court applied only to “elements” identified

by the circuit court, and therefore did not clearly apply to the

negativing of Matuu’s justification defenses.              To the extent the

ICA’s SDO stated that the circuit court’s unanimity instruction

applied to the justification instructions, we now clarify the

ICA decision.10



10
      Although this court has held that a defendant was not prejudiced when
the defenses of self and others were not included in the elements
instructions of the charged crime, see State v. Augustin, 101 Hawaiʻi 127, 63
P.3d 1097 (2002), as this court has stated, the right embodied in Hawaiʻi
Rules of Penal Procedure (“HRPP”) Rule 31(a) requiring that a verdict be
unanimous is a substantial one. See State v. Arceo, 84 Hawaiʻi 1, 33, 928
P.2d 843, 875 (1996). To the extent the ICA’s SDO suggests that a specific
unanimity instruction is not needed for justifications such as self-defense
and defense-of-others warrants further examination, as this court has
provided only limited circumstances in which a specific unanimity instruction
is not required. See, e.g., State v. Rapoza, 95 Hawaiʻi, 22 P.3d 968 (2001)
(concluding that a specific unanimity instruction was not required “if the
conduct element of an offense is proved by the prosecution to have been a
series of acts constituting a continuous course of conduct and the offense is
statutorily defined in such a manner as to not preclude it from being a
‘continuous offense’”).



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       The circuit court’s instructional error, however, was not

prejudicial.       In explaining why the jury instructions, when

viewed as a whole, were not prejudicially insufficient

erroneous, inconsistent, or misleading, the ICA correctly noted:

                    In addition, “[j]ury instructions . . . must be
              considered as a whole. Moreover, a refusal to give an
              instruction that correctly states the law is not in error
              if another expressing a substantially similar principle is
              given.” Here, the court sufficiently instructed the jury
              regarding unanimity. The court first stated that in order
              to convict, the jury must unanimously agree to each element
              of the crime beyond a reasonable doubt.[11] Then the court
              gave a general unanimity instruction.[12] In addition, in
              the instruction for self-defense, the court instructed the
              jury that “[t]he burden is on the prosecution to prove
              beyond a reasonable doubt that the force used by the
              defendant was not justified. If the prosecution does not
              meet its burden, then you must find the defendant not
              guilty.” The additional unanimity instruction requested by
              Matuu was unnecessary.

Matuu, SDO at 10–11.         As previously discussed, the circuit court

had instructed: “The burden is on the prosecution to prove

beyond a reasonable doubt that the force used by the defendant

was not justified.        If the prosecution does not meet its burden,




11
      It is not entirely clear to which specific instruction the ICA refers.
The “presumption of innocence/reasonable doubt” instruction does not include
unanimity language.
12
      Presumably, the “general unanimity instruction” refers to the
instruction patterned on Instruction No. 8.02 of the Hawaiʻi Pattern Jury
Instructions. The circuit court’s instruction stated:

              The law allows the introduction of evidence for the purpose
              of showing that there is more than one act upon which proof
              of an element of an offense may be based. In order for the
              prosecution to prove an element, all twelve jurors must
              unanimously agree that the same act has been proved beyond
              a reasonable doubt.



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then you must find the defendant not guilty.”13              The circuit

court had also instructed the jury that “[a] verdict must

represent the considered judgment of each juror, and in order to

reach a verdict, it is necessary that each juror agree thereto.

In other words, your verdict must be unanimous.”

       When these instructions are read together, a juror, who

does not find the State to have met its burden of proving beyond

a reasonable doubt that Matuu’s use of deadly force was not

justified, “must find the defendant not guilty.”               Because

“juries are presumed to . . . follow all of the trial court’s

instructions,” State v. Knight, 80 Hawaiʻi 318, 327, 909 P.2d

1133, 1142 (1996) (quoting Sato v. Tawata, 79 Hawaiʻi 14, 21, 897

P.2d 941, 948 (1995)), each of the jurors must have unanimously

determined that the State met its burden of proving beyond a

reasonable doubt that Matuu’s use of deadly force was not

justified.       As such, based on the record as a whole, the circuit

court’s instructions were not “prejudicially insufficient,

erroneous, inconsistent, or misleading.”             See Kassebeer, 118

Hawaiʻi at 504, 193 P.3d at 420.

       Thus, although the ICA did not refer to the “unanimous

verdict” instruction, it correctly concluded that the jury

13
      This appears to explain in lay terms to the jury that the prosecution’s
burden of negativing Matuu’s self-defense justification is indeed an
“element.” However, it does not imply that the general unanimity instruction
applies to the self-defense instruction, as the ICA appears to have
suggested.


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instructions, when viewed as a whole, were not prejudicially

insufficient, erroneous, inconsistent, or misleading.                See

Matuu, SDO at 11.

       The unanimity requirement as to negativing the defenses

would have been much clearer to the jury, however, if it was

specifically included in the instructions regarding the State’s

burden to negative the justification defenses.              We therefore

provide guidance that the circuit courts should follow this

practice.

B.     Substantial Evidence Supports the Negativing of Matuu’s
       Justifications of Self-defense and Defense-of-others

       Matuu also argues that there was insufficient evidence to

negative the defenses of self-defense and defense-of-others.

This argument also lacks merit.

       Once evidence of justification has been adduced, the

prosecution has the burden of disproving it beyond a reasonable

doubt.      See State v. Culkin, 97 Hawaiʻi 206, 215, 35 P.3d 233,

242 (2001) (citing HRS §§ 702-205(b), 703–301(1) (1993); State

v. Lubong, 77 Hawaiʻi 429, 431, 886 P.2d 766, 768 (App. 1994)).

The test for assessing a defendant’s self-protection

justification pursuant to HRS § 703-304 (2014)14 involves two



14
            Use of force in self-protection. (1) Subject to the
            provisions of this section and of section 703-308, the use
            of force upon or toward another person is justifiable when
            the actor believes that such force is immediately necessary
(continued . . .)

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prongs because HRS § 703-300 (2014) defines “believes” as

“reasonably believes”:

            The first prong is subjective; it requires a determination
            of whether the defendant had the requisite belief that
            deadly force was necessary to avert death, serious bodily
            injury, kidnapping, rape, or forcible sodomy.

            ....

            If the State does not prove beyond a reasonable doubt that
            the defendant did not have the requisite belief that deadly
            force was necessary, the factfinder must then proceed to
            the second prong of the test. This prong is objective; it
            requires a determination of whether a reasonably prudent
            person in the same situation as the defendant would have
            believed that deadly force was necessary for self-
            protection.

Culkin, 97 Hawaiʻi at 215, 35 P.3d at 242 (quoting Lubong, 77

Hawaiʻi at 433, 886 P.2d at 770).          On appeal, Matuu argues that

substantial evidence does not exist to support the requisite

findings under either prong.

      As the ICA discussed, even assuming Matuu had the requisite

belief that his use of force was necessary (prong 1), there was

substantial evidence in the record to support a finding that a

reasonably prudent person in the same situation as Matuu would

not have believed that the force exercised by Matuu was

immediately necessary for self-protection (prong 2).             See Matuu,


                                                             (. . . continued)
            for the purpose of protecting himself against the use of
            unlawful force by the other person on the present occasion.
                  (2) The use of deadly force is justifiable under this
            section 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.


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SDO at 6.       For example, Matuu testified that he was able to

“break free” when Kapesi intervened.            Accordingly, a person of

reasonable caution could conclude that upon “break[ing] free,”

it was not reasonable for Matuu to then go to the kitchen,

obtain a knife, and return to stab Frank, who was unarmed.

Additionally, although Matuu testified he recalled grabbing only

one knife and stabbing Frank once, the autopsy report showed

Frank was stabbed multiple times and two bloodied knife blades

were recovered — one lodged in a wound track in Frank’s chest

and another on the floor near Frank’s body.              As noted by the

ICA, a person of reasonable caution could conclude “that it was

[not] necessary [for Matuu] to stab Frank in the torso multiple

times to protect himself against death or serious injury.”

Matuu, SDO at 7.

       A similar two-prong subjective/objective approach is

necessary to analyze a defense-of-others justification pursuant

to HRS § 703-305 (2014).15         As to prong 1, or the subjective

inquiry, “[t]he commentary to HRS § 703–305 states that this

15
              Use of force for the protection of other persons. (1)
              Subject to the provisions of this section and of section
              703-310, the use of force upon or toward the person of
              another is justifiable to protect a third person when:
                   (a) Under the circumstances as the actor believes
              them to be, the person whom the actor seeks to protect
              would be justified in using such protective force; and
                   (b) The actor believes that the actor’s intervention
              is necessary for the protection of the other person.
              . . . .

HRS § 703-305.


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section ‘permits a person to use force to protect another person

when [(a)] the actor believes the other person would have been

justified in using force to protect himself and [(b)] he

believes that his intervention is necessary to protect the other

person.’”    State v. Mark, 123 Hawaiʻi 205, 220, 231 P.3d 478, 493

(2010) (emphasis in original) (footnote omitted).            Prong 2, or

the objective inquiry, is necessary because, as noted

previously, “believes” means “reasonably believes.”            HRS § 703–

300.

       The ICA’s analysis of whether sufficient evidence was

presented to negative Matuu’s defense-of-others justification

focused solely on prong 1(a).        It first states that the jury may

have simply believed Kapesi’s testimony over Matuu’s.             Thus,

with respect to prong 1(a), the jury could have concluded that

“although Frank slammed Kapesi to the ground, Frank did not hit

Kapesi and Kapesi had regained his wind and was on his feet

trying to keep Frank and Matuu apart when Frank was stabbed.”

Matuu, SDO at 7.     Accordingly, “the jury was well within its

province to conclude that the evidence proved beyond a

reasonable doubt that Kapesi would not have been justified in

stabbing Frank under these circumstances.”          Matuu, SDO at 7–8.

In other words, a person of reasonable caution could have relied

on Kapesi’s testimony (and disbelieved Matuu’s testimony) that

Frank did not punch Kapesi when Kapesi intervened in the January

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24, 2015 altercation, and therefore conclude that Matuu did not

have the requisite subjective belief that Kapesi would have been

justified in stabbing Frank.

    Similarly, with respect to prong 1(b), substantial evidence

supports the conclusion that Matuu did not actually “believe

that [his] intervention [wa]s necessary for the protection” of

Kapesi.   See HRS § 703-305(b).       For example, as stated

previously, a person of reasonable caution could have concluded

that Frank did not punch Kapesi after Kapesi attempted to

separate Frank and Matuu, and therefore Matuu did not believe it

was necessary for him to intervene.

    A person of reasonable caution could also have concluded

that even if Frank had punched Kapesi on January 24, 2015, Matuu

was nevertheless unconcerned with Kapesi’s well-being.             At

trial, Matuu testified that because he was “scared” Frank would

target him after Frank was “done with” Kapesi, he needed to

“protect[] himself” by grabbing a knife from the kitchen.

However, Matuu also testified that after stabbing Frank, Matuu

said to Frank: “I told you, bro.          I told you to stop, but you

was pushing me, and you was bothering me, and you was telling me

you was going beat me up and put me in the hospital.”             Because

Matuu said nothing about Frank punching Kapesi, and nothing in

Matuu’s testimony showed he was otherwise concerned with

Kapesi’s well-being, a person of reasonable caution could have

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concluded that Matuu was not concerned about Kapesi, and

therefore conclude that Matuu did not believe that he needed to

use force against Frank to protect Kapesi.

    Yet, even if it were assumed that both parts of prong 1

were satisfied – that Matuu had the requisite subjective belief

that (a) Kapesi would have been justified in using force to

protect himself against Frank, and (b) Matuu’s intervention was

necessary to protect Kapesi — there was sufficient evidence to

support a jury’s finding as to Prong 2, i.e., that Matuu’s

belief was not “reasonable.”

    Evidence shows that Kapesi was not afraid of Frank despite

being punched by him on a previous occasion and requiring

stitches; Kapesi voluntarily came out of his room to stop Frank

and Matuu’s fight even though Frank was “high on drugs”; and the

only injury Kapesi appeared to have suffered from the incident

was a stab wound to the hand caused by Matuu.           Thus, a person of

reasonable caution could have concluded that Kapesi would not

have been justified in stabbing Frank multiple times to protect

himself against Frank’s punches, or that Matuu’s intervention

was necessary to protect Kapesi, and therefore, any subjective

belief Matuu may have had was not reasonable.

                              V.   Conclusion

    For the foregoing reasons, we affirm the ICA’s November 17,

2017 Judgment on Appeal entered pursuant to its SDO.            The ICA

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correctly concluded that Matuu’s conviction was supported by

substantial evidence and that the circuit court’s jury

instructions were not prejudicially erroneous or misleading.

However, we provide guidance that the requirement for unanimity

should specifically be included in justification instructions.

Jon N. Ikenaga                     /s/    Mark E. Recktenwald
for petitioner
                                   /s/    Paula A. Nakayama
Stephen K. Tsushima
for respondent                     /s/    Sabrina S. McKenna

                                   /s/    Richard W. Pollack

                                   /s/    Michael D. Wilson




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