90 Hawai'i 96, State v. Maumalanga, No. 20146
| Decision Date | 11 August 1998 |
| Docket Number | No. 20146 |
| Citation | 976 P.2d 410 |
| Parties | 90 Hawai'i 96 STATE of Hawai'i, Plaintiff-Appellee, v. Malakai MAUMALANGA, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Rose Anne Fletcher, Deputy Public Defender, on the brief, for defendant-appellant.
Mark Yuen, Deputy Prosecuting Attorney, City and County of Honolulu, on the brief, for plaintiff-appellee.
I. INTRODUCTION
Defendant-Appellant Malakai Maumalanga (Defendant) appeals the First Circuit Court's June 28, 1996 Amended Judgment of Conviction and Probation Sentence. 1 For the reasons set forth below, we affirm. II. BACKGROUND
On June 8, 1996, Defendant had been working at EM Tours as a porter. Because an alleged anonymous phone call was received by the tour company that it would be robbed that evening, Defendant brought two guns to work with him that day. Apparently, no robbery occurred.
While at work on June 8, 1996, Defendant heard of a possible drive-by shooting at Kanoa Park. Defendant then left work at about 10:00 p.m. to personally drive home two of his friends who were at the park during the drive-by shooting. After dropping off his friends, Defendant went to a gas station to put gas in his car. While at the gas station, Defendant coincidentally saw boys who he suspected were involved in the drive-by shooting.
Defendant alleged that one of the boys at the gas station pulled out a gun and aimed it at Defendant. Because Defendant unsuccessfully attempted to drive away, Defendant allegedly had no choice but to grab his gun and aim it at the boys. Defendant then shot off around four to five rounds from his gun.
Defendant was subsequently arrested and charged with seven counts: Attempted Murder in the First Degree (Count I); Attempted Murder in the Second Degree (Counts II and III); Place to Keep Loaded Firearm (Count IV); 2 and Terroristic Threatening in the First Degree (Counts V, VI and VII).
The trial court subsequently granted, in part, Defendant's motion for directed verdict and thereby acquitted Defendant of Counts VI and VII.
At trial, Defendant specifically raised a choice of evils defense to the charge of Place to Keep Loaded Firearm, 3 Hawai'i Revised Statutes (HRS) §§ 134-6(c) and (e) (1993). 4 Over Defendant's objection, the court instructed the jury on the choice of evils defense as follows:
It is a defense to the offense charged that the defendant's conduct was legally justified. The law recognizes the "choice of evils" defense, also referred to as the "necessity" defense.
The "choice of evils" defense justifies the defendant's conduct if the defendant reasonably believed that compliance with the law would have resulted in greater harm to himself or another than the harm sought to be prevented by the law defining the offense charged.
In order for the "choice of evils" defense to apply, four conditions must be satisfied. First, the defendant must have reasonably believed that there was no legal alternative available to him. Second, the defendant must have reasonably believed that the harm sought to be prevented was imminent or immediate. Third, the defendant's conduct must have been reasonably designed to actually prevent the threat of greater harm. Fourth, the harm sought to be avoided must have been greater than the harm sought to be prevented by the law defining the offense charged.
Accordingly, if the prosecution has not proved beyond a reasonable doubt that the defendant's conduct was not legally justified by the "choice of evils" defense, then you must find the defendant not guilty of Count IV: Place to Keep Loaded Firearm. If the prosecution has done so, then you must find that the "choice of evils" defense does not apply. 5
(Patterned Hawai'i Jury Instruction 7.12) (emphasis added).
Subsequently, the jury acquitted Defendant of Counts I, II, III, and V. The jury found Defendant guilty of Count IV--Place to Keep Loaded Firearm.
An Amended Judgment of Conviction and Probation Sentence was entered on June 28, 1996. 6 Defendant's Notice of Appeal was untimely, having been filed on September 26, 1996.
III. DISCUSSION
Preliminarily, there is a question of jurisdiction in this case because Defendant filed his notice of appeal fifty-nine days late, or ninety days after the trial court entered its judgment. Pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 4(b), a criminal defendant must file a notice of appeal "within 30 days after the entry of the judgment or order appealed from." However, "[t]his court and the Hawai'i Supreme Court have seen fit in criminal cases to relax the deadline for filing a notice of appeal where justice so warrants." State v. Ahlo, 79 Hawai'i 385, 392, 903 P.2d 690, 697 (App.1995) (quotation marks and citations omitted). In light of the above holdings, and based on a review of the circumstances in this case, the interests of justice require us to hold that Defendant's failure to comply with HRAP Rule 4(b) does not preclude his right to appeal. See State v. Knight, 80 Hawai'i 318, 323, 909 P.2d 1133, 1139 (1996) (); Ahlo, 79 Hawai'i at 392, 903 P.2d at 697 (doing the same).
Defendant appeals only his conviction of Place to Keep Loaded Firearm. In that regard, Defendant only challenges the jury's instruction regarding his choice of evils justification defense.
"In reviewing jury instructions, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." State v. Maelega, 80 Hawai'i 172, 176, 907 P.2d 758, 762 (1995) (quotation marks and citations omitted).
HRS § 703-302(1)(a) (1993) provides, in relevant part, as follows:
Choice of evils. (1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that:
(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged[.]
HRS § 703-302(1)(a). 7 HRS § 703-300 (1993) defines "believes" to mean "reasonably believes."
Because the Hawai'i Penal Code (the Code) is derived from the Model Penal Code (MPC), Hse. Stand. Comm. Rep. No. 227, in 1971 House journal, at 784, HRS § 703-302 is nearly identical to Section 3.02 of the MPC. 8
Prior to the enactment of HRS § 703-302(1)(a), the State of Hawai'i (the State) followed the common law defense of "necessity" or choice of evils. State v. Marley, 54 Haw. 450, 471-72, 509 P.2d 1095, 1109 (1973). 9 Under the common law approach, the choice of evils defense is not applicable in three situations (the Marley test):
(1) Where there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law....
(2) A closely related required element is that the harm to be prevented be imminent....
(3) Thirdly, and most importantly, even assuming arguendo that alternative courses of action were "unavailable" ... defendants remain unentitled to the defense of "necessity" because their actions were not reasonably designed to actually prevent the threatened greater harm.
Id. at 472, 509 P.2d at 1109 (citations omitted).
Following the enactment of HRS § 703-302, this court in State v. Kealoha, 9 Haw.App. 115, 826 P.2d 884 (1992) believed that "the Marley rationale [was] applicable in the construction of HRS § 703-302(1), (2)." Id. at 118, 826 P.2d at 886. Thus, we essentially adopted the three-part Marley test for purposes of construing HRS § 703-302(1), (2). Id.
Subsequently, in 1996, we reaffirmed our decision in Kealoha and surmised that, pursuant to HRS § 703-302(1)(a),
the necessity or choice of evils justification defense is not applicable when one or both of the following requirements is not satisfied: (1) the defendant reasonably believed that it was necessary to commit the crime to avoid an imminent harm or evil to himself or to others; or (2) the harm or evil sought to be avoided was greater than the harm or evil generated by the crime committed.
State v. DeCastro, 81 Hawai'i 147, 153, 913 P.2d 558, 564 (App.1996) (Acoba, J., concurring).
We further reiterated our holding in Kealoha that,
with respect to requirement (1) above, a person does not reasonably believe that it is necessary to commit a crime to avoid an imminent harm or evil to himself or others when one or more of the following is a fact:
(a) A third alternative that did not involve the commission of a crime was reasonably available to the person;
(b) The crime committed was not reasonably designed to actually avoid the harm or evil sought to be avoided; or
(c) The harm or evil sought to be avoided was not imminent when the person committed the crime.
Id. at 153-54, 913 P.2d at 564-65.
However, in DeCastro, Judge Acoba disagreed with the application of the three-part Marley test because in his opinion, "the common law requirements set forth in Kealoha [and Marley ] conflict with the express language of HRS § 703-302." Id. at 155, 913 P.2d at 566. Instead, pursuant to the express language of HRS § 703-302(1)(a), Judge Acoba reasoned that
the justification defense is satisfied when the following factors are established: the defendant (1) reasonably believes (2) the conduct is necessary (3) to avoid harm or evil to the actor or another which is (4) imminent, and (5) the harm or evil sought to be avoided is greater than the violative conduct.
Defendant now asks us to revisit our holdings in Kealoha and DeCastro on the basis that these cases improperly expand or add to the requirements set forth by the legislature in HRS § 703-302(1)(a).
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