State v. Lui, 6672

• Decision Date: 26 November 1979
• Docket Number: No. 6672,6672
• Citation: 61 Haw. 328,603 P.2d 151
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Abel Simeona LUI, also known as Able S. Lui and Bobo, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 151

603 P.2d 151

61 Haw. 328

STATE of Hawaii, Plaintiff-Appellee, v. Abel Simeona LUI, also known as Able S. Lui and Bobo Defendant-Appellant.

No. 6672.

Supreme Court of Hawai'i.

Nov. 26, 1979.

Syllabus by the Court

1. In self-defense to a charge of homicide, evidence of deceased's violent or aggressive character is admissible either to demonstrate the reasonableness of defendant's apprehension of immediate danger or to show that decedent was the aggressor.

2. Where character evidence is offered to show the reasonableness of defendant's apprehension, a foundation must be laid to show that defendant, at the time of the homicide knew of deceased's reputation of violence or of the specific acts of violence committed, but such foundation is not required where such evidence is offered to show that decedent was the aggressor.

3. Character evidence based on deceased's conviction record is inadmissible as proof of the reasonableness of defendant's belief that deadly force was immediately necessary, absent a foundation that defendant knew of the specific events of deceased's convictions at the time of the homicide.

4. Where the evidence fails to support a factual dispute as to who was the aggressor, character evidence to show that deceased was the aggressor in the fatal incident was properly excluded.

5. Admission of character evidence rests within the sound discretion of the trial court. The court must weigh the probative value of such evidence against the prejudicial impact on the minds of the jurors.

6. Once the defense makes a pretrial Brady motion, the duty to determine the merits of the request for disclosure falls solely on the court.

Renee M. L. Yuen, Deputy Public Defender, Honolulu (Raymond E. Gurczynski, Deputy Public Defender, Honolulu, with her on the brief), for defendant-appellee.

Arthur Ross, Deputy Pros. Atty. (Keith M. Kaneshiro, Deputy Pros. Atty., Honolulu, on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and Retired Justice MARUMOTO and Circuit Judge LUM assigned by reason of vacancies.

PER CURIAM.

Appellant, Abel Simeona Lui, charged with murder for the shooting death of Don Anthony Gomes, was convicted by a jury of manslaughter ¹ on April 11, 1977.

Appellant claimed self-defense under our statutory scheme of justification. ² From his conviction, he appeals.

On July 7, 1976, several hours before the homicide, at the end of a fist fight between the parties, appellant claimed deceased threatened him: "I'm going to blow your f----- head."

Following the fight, appellant went to his mother's home, armed himself with a handgun and returned to the scene of the fight.

While talking to a friend who was in a parked automobile, appellant observed deceased approaching his direction from the opposite side of the street. He then disengaged his conversation, headed toward deceased and shot him while approximately 10 feet away. Appellant testified he thought deceased was reaching for a gun. Deceased was in fact unarmed.

The trial court did not admit into evidence: (1) testimony of appellant that he knew, at the time of the homicide, that deceased had beaten and raped a 13-year-old girl; (2) testimony of the police officer who arrested deceased for the rape and who personally interviewed the complainant; and (3) deceased's conviction record of assault in the third degree, criminal property damage in the third degree and driving under the influence of intoxicating liquor.

Appellant now claims he was denied his right to present evidence when the court refused to admit character evidence on specific acts of prior violence committed by deceased.

I. ADMISSIBILITY OF DECEASED'S PRIOR VIOLENT ACTS

Under common law, a defendant who claims self-defense to a charge of homicide is permitted to introduce evidence of the deceased's violent or aggressive character either to demonstrate the reasonableness of his apprehension of immediate danger or to show that the decedent was the aggressor. State v. Jacoby, 260 N.W.2d 828 (Iowa 1977), Annot., 1 A.L.R.3d 571 (1965). And, where character evidence is offered to show the reasonableness of the defendant's apprehension, he must lay a foundation, prior to the admission of the evidence, that he knew at the time of the homicide of the deceased's reputation or of the specific acts of violence committed. This foundation is required because the evidence is probative of the defendant's state of mind, showing his belief or corroborating his knowledge as to the deceased's character and tending to prove that he acted as a reasonably prudent person would under similar beliefs and circumstances. See, Ibid, McMorris v. State, 58 Wis.2d 144, 205 N.W.2d 559 (1973). Accord, Territory v. Aquino, 43 Haw. 347 (1959). But, the foundation is not required where the factual issue is to determine the aggressor. State v. Jacoby, supra. Proof of the deceased's violent and turbulent character in this situation is circumstantial evidence of the likelihood of his being the aggressor and of the absence of provocation on the part of the defendant.

Although Hawaii's laws on justification supersede the common law defense of self-defense, nevertheless, the common law rules on character evidence are applicable.

Deceased's conviction record was properly excluded. Absent the required foundation that appellant knew of each of the specific events ³ of the conviction at the time of the homicide, it was inadmissible as proof of the reasonableness of his belief that deadly force was immediately necessary. Appellant's testimony as to his knowledge of all three acts was limited to a single statement that he knew of assaults in Waikiki. ⁴ Without a more complete connection between appellant's knowledge of the assaults and the conviction record, the foundation was inadequate to justify admission.

The trial court also properly excluded the proffered evidence to show by circumstantial proof that the deceased was the aggressor in the fatal incident.

The record does not support a factual dispute as to who was the aggressor. The State did not seek to establish the applicability of § 703-304 by showing that the appellant "with intent to cause death or serious bodily injury, provoked the use of force against himself."

Where the details of the fatal encounter are free from doubt, a defendant cannot bootstrap into evidence the character of deceased to serve improperly as an excuse for the killing under the pretext of evidencing deceased's aggression. See Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875 (1954); 1 Wigmore, Evidence, Sec. 3 (3d ed. 1940).

Evidence as to the rape and beating could have been admitted as bearing on appellant's state of mind, but such admission rests in the sound discretion of the trial court. McAllister v. State, 74 Wis.2d 246, 246 N.W.2d 511 (1976). The trial court was required to weigh the probative value of this evidence against the prejudicial impact on the minds of the jurors. Not only was the rape incident remotely connected to the circumstances of this case, there was no foundation as to when it happened. We find no abuse of discretion here.

II. DISCLOSURE OF DECEASED'S ARREST RECORDS

Before trial, appellant moved for disclosure of deceased's arrest records in order to secure names of witnesses who could be called to testify as to deceased's character for violence and aggression. The trial court denied this motion and a subsequent request for an In...