State v. Basque, 8582

Citation666 P.2d 599,66 Haw. 510
Decision Date21 July 1983
Docket NumberNo. 8582,8582
PartiesSTATE of Hawaii, Plaintiff-Appellee, v. Joseph BASQUE, Jr., also known as Dido, Defendant-Appellant.
CourtSupreme Court of Hawai'i

Syllabus by the Court

1. A defendant who claims self-defense to a murder charge may introduce evidence of the deceased's violent or aggressive character to show either the reasonableness of his apprehension of the deceased or that the deceased was the aggressor.

2. The deceased's violent character may be proved by general character evidence or by evidence of specific criminal acts.

3. Where the issue is whether the defendant or the deceased was the aggressor, the defendant need not lay a foundation showing that he knew of the deceased's violent character, since proof of such character is circumstantial evidence of the likelihood of the deceased having been the aggressor.

4. Where the trial court itself recognized in its jury instructions that there existed a genuine factual issue as to who was the aggressor, it was an abuse of discretion for the court to flatly prohibit the defendant from arguing to the jury or introducing evidence concerning the criminal record of the deceased.

5. The trial court retains the discretion to determine to what extent, and in what manner, evidence of the deceased's criminal record may be allowed in and alluded to.

J. Michael Dwyer, Honolulu (Michael A. Weight, Honolulu, on briefs) for defendant-appellant.

Lila B. LeDuc, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

LUM, Chief Justice.

This is an appeal from a murder conviction. Following a motion in limine hearing, the trial court ruled that defendant would be barred from making any arguments or presenting any evidence relating to the deceased's criminal record. We hold this was an abuse of the court's discretion, and reverse and remand for further proceedings.

I.
A.

On the afternoon of August 31, 1980, defendant-appellant Joseph Basque, Jr. went to the home of his former girlfriend, Donna Delima, to visit their daughter. He called out to Delima from outside the front gate, and she came out to see him. Appellant was sitting in the driver's seat of his car with the door open, and Delima was standing at the rear of the driver's side of the car, when Joseph Pagharion, Delima's boyfriend, pushed Delima aside, shook the car, and approached appellant. As he leaned over, he told appellant, "Why the hell you keep on bothering her?" Appellant replied, "I don't want no hassles."

There was conflicting testimony as to what happened next. Delima and her brother, who was also present at the scene, both testified that appellant reached under the driver's seat and came up with a gun. A shot was fired, wounding Pagharion in the upper left arm. There was then a struggle for the gun, which went off a second time, fatally wounding Pagharion in the chest.

The testimony of appellant was that Pagharion was swearing and threatening to kill him as he came through the driver's side door. Appellant thought Pagharion was reaching for the gun, which was partly sticking out from the seat, and testified that both he and Pagharion grabbed the gun at the same time. The first shot discharged, the struggle continued, and the second, fatal shot was fired.

B.

The State filed a motion in limine, requesting that appellant be precluded from arguing to the jury or introducing into evidence the criminal record of the deceased, Joseph Pagharion. As proffered by appellant, that record consisted of the deceased's arrests for attempted murder and five counts of armed robbery, and his guilty plea to two of the robbery counts. Appellant maintained that such evidence was admissible to show who was the aggressor in the incident, a critical aspect in appellant's claim that he acted in self-defense.

After balancing the interests of the State against those of the defendant pursuant to Rule 403 of the Hawaii Rules of Evidence (HRS ch. 626), 1 the court granted the State's motion. It reasoned that the jurors might give too much emphasis to evidence of the deceased's criminal record. It therefore prohibited appellant from mentioning or introducing any such evidence during trial.

II.
A.

In State v. Lui, 61 Haw. 328, 603 P.2d 151 (1979), the appellant asserted as reversible error the trial court's exclusion of evidence relating to the murder victim's criminal history. We noted with approval the common law rule that "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." Id. at 330, 603 P.2d at 154. We held, however, that the trial court did not abuse its discretion in excluding evidence of the victim's criminal record because the facts were clear that the appellant, and not the victim, had been the aggressor. 2 ]

In contrast, the evidence presented in the instant case is unclear and conflicting as to who was the aggressor. The testimony of appellant, witnesses to the shooting, 3 and even the State's two experts, 4 presents genuine disputes as to who attacked whom first, and how close and in what position the appellant and decedent were when the two shots were fired. Moreover, uncontroverted testimony was adduced that the deceased had drunk about eight beers that afternoon, and in approaching appellant, had pushed aside Delima and shaken the car. Given such testimony, it is evident that a factual question existed as to who was the aggressor in this case. See United States v. Burks, 470 F.2d 432 (D.C.Cir.1972). The trial court implicitly acknowledged as much when, as part of its "self-defense" jury instruction, it stated: "In order for the defendant to have been justified in the use of deadly force in self-defense, he must not have provoked the assault on him or have been the aggressor."

B.

Factually, then, the instant case is unlike State v. Lui, supra. The rule in Lui regarding the use of a victim's criminal record to establish who was the aggressor, however, is applicable. That rule was later codified as Rule 404(a)(2) of the Hawaii Rules of Evidence, which states that "[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused" is admissible to prove that the victim acted in conformity with that character trait on a particular occasion. The State contends that this provision allows only the use of character evidence--to be proved by reputation or opinion--and not evidence of "other crimes, wrongs, or acts," which is covered by Rule 404(b). 5

In Lui, however, we treated general character evidence and specific prior acts (including those reflected in the victim's criminal record) the same for purposes of corroborating a defendant's self-defense claim as to who was the aggressor. A growing number of other courts are in accord. See, e.g., United States v. Greschner, 647 F.2d 740 (7th Cir.1981); United States v. Burks, 470 F.2d 432 (D.C.Cir.1972); State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978); Commonwealth v. Beck, 485 Pa. 475, 402 A.2d 1371 (1979); Jordan v. Commonwealth, 219 Va. 852, 252 S.E.2d 323 (1979). As Dean Wigmore has stated: "[T]here is no substantial reason against evidencing the character (of a deceased victim) by particular instances of violent or quarrelsome conduct. Such instances may be very significant; their number can be controlled by the trial court's discretion; and the prohibitory considerations applicable to an accused's character have here little or no force." 1 Wigmore on Evidence § 198 (3d ed. 1940) (emphasis in original).

C.

We also noted in Lui that where the issue of who was the aggressor is in dispute, the defendant need not lay a foundation showing that he knew of the victim's character or prior bad acts. This is because "[p]roof 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...

To continue reading

Request your trial
26 cases
  • State v. Woodson, 18321
    • United States
    • West Virginia Supreme Court
    • June 8, 1989
    ...Wright, 39 Cal.3d 576, 217 Cal.Rptr. 212, 703 P.2d 1106 (1985); State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978); State v. Basque, 66 Haw. 510, 666 P.2d 599 (1983); People v. Fischer, 100 Ill.App.3d 195, 55 Ill.Dec. 640, 426 N.E.2d 965 (1981); Commonwealth v. Fontes, 396 Mass. 733, 488 ......
  • State v. Pond
    • United States
    • Hawaii Supreme Court
    • September 29, 2008
    ...an accused" may be admitted "for the purpose of proving action in conformity therewith on a particular occasion"); State v. Basque, 66 Haw. 510, 515, 666 P.2d 599, 603 (1983) (holding that "the court abused its discretion when it flatly prohibited [the defendant] from ... eliciting evidence......
  • State v. Culkin
    • United States
    • Hawaii Supreme Court
    • November 30, 2001
    ...This exception allows the defense to introduce general character evidence as well as specific prior acts. State v. Basque, 66 Haw. 510, 514, 666 P.2d 599, 602 (1983). Culkin contends that the circuit court committed reversible error by excluding: (1) evidence that Thomas had been in prison;......
  • Commonwealth v. Adjutant
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 2, 2004
    ...judge's discretionary exclusion of specific acts when "of little if any probative value"); State v. Miranda, supra; State v. Basque, 66 Haw. 510, 515 (1983); State v. Baca, supra (notwithstanding rule allowing admission of victim's specific acts of violence, "trial court could very well hav......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT