State v. Augustin

• Decision Date: 17 December 2002
• Docket Number: No. 23105.,23105.
• Citation: 101 Haw. 127,63 P.3d 1097
• Parties: STATE of Hawai`i, Respondent/Plaintiff-Appellee, v. Raymond K.K. AUGUSTIN, Petitioner/Defendant-Appellant.
• Court: Hawaii Supreme Court

63 P.3d 1097

101 Haw. 127

STATE of Hawai`i, Respondent/Plaintiff-Appellee, v. Raymond K.K. AUGUSTIN, Petitioner/Defendant-Appellant.

No. 23105.

Supreme Court of Hawai`i.

December 17, 2002.

Arthur E. Ross, Honolulu, for petitioner/defendant-appellant Raymond K.K. Augustin, on the writ.

MOON, C.J., LEVINSON, NAKAYAMA, JJ.; and ACOBA, J., dissenting, with whom RAMIL, J., joins.

ORDER DISMISSING CERTIORARI PROCEEDING

We dismiss the petitioner/defendant-appellant Raymond K.K. Augustin's application for a writ of certiorari as improvidently granted because the summary disposition order of the Intermediate Court of Appeals in State v. Augustin, No. 23105, 97 Hawai`i 570, 40 P.3d 972 (Haw. Ct.App. Dec 27, 2001), contains no grave errors of law or fact and is not obviously inconsistent with the appellate case law of this state. See Hawai`i Revised Statutes (HRS) 602-59(b) (1993).

We disagree with Augustin that that part of the trial court's instructions advising the jury to consider Augustin's justification claims "from the viewpoint of a reasonable person in [Augustin's] position under the circumstances of which [Augustin] was aware or as [Augustin] reasonably believed them to be" was prejudicially incorrect, because the instructions in question—derived from Hawai`i Pattern Jury Instructions—Criminal (HAWJIC) 7.01 ("Self-Defense") and 7.02 ("Defense of Others")—are fully consonant with the controlling statutory and case law of this state.

For purposes of the present appeal, the material language of the trial court's jury instructions regarding self-defense and defense-of-others was as follows:

The reasonableness of the defendant's belief that the use of such protective 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.

(Emphasis added.) The foregoing language derives from the statutory defenses of "use of force in self-protection," as codified in HRS § 703-304 (1993), and "use of force for the protection of other persons," as codified in HRS § 703-305. HRS § 703-304 provides in relevant part:

(1) . . . [T]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.

. . . .

(3) . . . [A] person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be. . . .

(Emphases added.) Similarly, HRS § 703-305 provides in relevant part:

(1) . . . [T]he 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.

(Emphases added.)

With respect to the use-of-force defenses, the defendant's belief must be "reasonable," see HRS § 703-300 (1993) ("`Believes' means reasonably believes."). Moreover, a defendant may only be charged with "knowledge" of those "circumstances" of which he or she is actually "aware." See HRS § 702-206(2)(b) (1993) ("A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist."). That is why,

[u]nder Hawai`i law, the standard for judging the reasonableness of a defendant's belief for the need to use deadly force is determined from the point of view of a reasonable person in the [d]efendant's position under the circumstances as he believed them to be. The jury, therefore, must consider the circumstances as the [d]efendant subjectively believed them to be at the time he tried to defend himself.

State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990) (emphasis in original) (citation omitted). It is therefore error to judge the reasonableness of a defendant's viewpoint based on circumstances "shown in the evidence" but of which the defendant is not "aware." Id. at 477-78, 796 P.2d at 85. The fact remains, however, that the defendant's belief regarding the immediate necessity of the use of protective force must be reasonable. See HRS § 703-300.

HAWJIC Instructions 7.01 and 7.02 come right out of the Hawai`i Penal Code and Pemberton and cover all possible conditions under which a defendant can prevail with respect to his or her use-of-force defense. Either the prosecution will fail to disprove beyond a reasonable doubt (1) that a reasonable person (objective standard) in the defendant's position would believe that the use of protective force was immediately necessary, given the circumstances of which he or she was actually (i.e., subjectively) aware or (2) that a reasonable person (objective standard) in the defendant's position would believe that the use of protective force was immediately necessary, given the circumstances (subjective) as the defendant reasonably (i.e., objectively) but perhaps mistakenly (objective) believed them to be. Both conditions cannot be present simultaneously. Accordingly, it would be erroneous, misleading, and confusing to require the substitution of the conjunctive "and" for the disjunctive "or" that the trial court utilized in its use-of-force instructions in the present case.

Augustin's other points of error raised in his application for a writ of certiorari are likewise without merit. For the foregoing reasons, Augustin's application for a writ of certiorari is hereby dismissed as improvidently granted.

Dissenting Opinion by ACOBA, J., in which RAMIL, J., joins.

Petitioner/Defendant-Appellant Raymond K.K. Augustin (Petitioner) petitioned this court for a writ of certiorari to review the Summary Disposition Order (SDO) of the Intermediate Court of Appeals (ICA) in State v. Augustin, No. 23105, 97 Hawai`i 570, 40 P.3d 972 (Haw.Ct.App. Dec. 27, 2001) [hereinafter "ICA opinion"]. In its SDO, the ICA affirmed the January 10, 2000 judgment of the first circuit court (the court), adjudging Petitioner guilty of Murder in the Second Degree, Hawai`i Revised Statutes (HRS) § 707-701.5 (1993), of Larry Basuel, and of Place to Keep Pistol or Revolver, HRS § 134-6(c) and (e) (1993). The judgment was rendered after Petitioner's third jury trial¹ which began on September 20, 1999.

In his application for certiorari, Petitioner argues inter alia that, as to his justification defenses of defense of self and defense of others, "[t]he court's instructions, in conjunction with the prosecutor's arguments misstating the law of justification, misdirected the jury by requiring it to apply a wholly objective standard rather than [by] judg[ing] the reasonableness of Petitioner's actions from his point of view." I believe Petitioner's application should have been granted primarily to clarify the state of our case law with regard to the use of force defense to protect oneself or others—the issue raised in Petitioner's first point on certiorari. See State v. Hanson, 97 Hawai`i 71, 73, 34 P.3d 1, 3 (2001)

(affirming ICA opinion, but granting certiorari "[i]n light of Defendant's objections, . . . to clarify the basis for upholding airport security searches"); Korsak v. Hawaii Permanente Med. Group, 94 Hawai`i 297, 300, 12 P.3d 1238, 1241 (2000) (granting certiorari "to clarify several aspects of the ICA opinion").

I.

A.

The following relevant evidence, essentially from Petitioner's testimony, was adduced at trial. On New Year's Day of 1994, Larry Basuel was awakened from a nap at the home of Petitioner's sister and brother-in-law, Raelyn and Andy Basuel. Larry became violent, grabbed a gun out of a bag and said, "[Y]ou guys think you guys can screw with me? This is 1994, new year, nobody screws with me no more. Sick and tired of all this shit. You guys aren't screwing me no more." When Petitioner tried to calm Larry down, Larry told him to "shut up, unless [he] want[ed] some too." Larry then exited the house, waved the pistol around, and repeatedly screamed, "Anybody come outside." Larry's behavior made Petitioner feel "[s]cared."

Six months later, on June 11, 1994, Petitioner, his wife Julie, and their two-month-old baby attended a barbeque gathering at the Basuel home. Larry was also there. Petitioner brought a gun with him because Larry had expressed an interest in buying it. According to Petitioner, Larry revealed that he had a firearm with him as well.

At about 6:00 to 6:30 in the evening, Larry approached Petitioner, who was holding his sleeping baby, and "went to pat [the baby] on the back." Petitioner did not want the baby awakened because she was fussy and told Larry as much. Petitioner requested that Larry leave the baby alone, and Larry "got a little angry" and began to shake the baby "harder." Larry then taunted Petitioner and asked whether Petitioner would "shoot him."

After this exchange, Larry sat in the garage and "just kept asking if [Petitioner was] mad at him and if he was gonna use his nine millimeter on him." Petitioner replied that "he wouldn't do that to family." Larry hit the garage wall three times "[h]ard enough to get lacerations on his knuckles."

The baby awoke at some point during this interchange. Julie told Petitioner that they should leave. Larry then asked him, "[W]hy you leaving for? You scared?" Larry called out an obscenity to Julie and, according to Petitioner, told her, "I will kick your ass. I no care holding baby. I no care baby sick. You better shut up." Petitioner was "upset" and "afraid." He had been told that "Larry was a golden gloves boxer."

As the family headed toward their car, Larry "was pounding on the wall . . . and walking back and forth[.]" Julie said, "[Y]ou wait, Larry, you wait." Larry then rushed out of the garage toward Julie, saying, "What you said you f____?" Pet...