State v. Kealoha

• Decision Date: 13 March 1992
• Docket Number: No. 15520,15520
• Citation: 9 Haw.App. 115,826 P.2d 884
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Samuel L. KEALOHA, Jr., Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 884

826 P.2d 884

9 Haw.App. 115

STATE of Hawaii, Plaintiff-Appellee, v. Samuel L. KEALOHA, Jr., Defendant-Appellant.

No. 15520.

Intermediate Court of Appeals of Hawai'i.

March 13, 1992.

Syllabus by the Court

The "necessity" or "choice of evils" justification defense is not applicable when one or more 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;

a. No third alternative that did not involve the commission of a crime was reasonably available to defendant;

b. The crime committed was reasonably designed to actually avoid the harm or evil sought to be avoided; and

c. The harm or evil sought to be avoided was imminent when the defendant committed the crime.

2. The harm or evil sought to be avoided was greater than the harm or evil generated by the crime committed.

Williamson B.C. Chang, Elizabeth Pa Martin, Native Hawaiian Advisory Council, Honolulu, for defendant-appellant.

James T. Carter, Deputy Pros. Atty., County of Maui, Wailuku, Maui, for plaintiff-appellee.

Before BURNS, C.J., and HEEN, J., and HUDDY, Circuit Judge, assigned by reason of vacancy.

BURNS, Chief Judge.

Defendant Samuel L. Kealoha, Jr. (Kealoha), appeals the district court's April 24, 1991 judgment finding him guilty of the unauthorized overnight parking of his pickup truck at the Molokai airport on April 22, 1990 and sentencing him to pay a $25 fine. We affirm.

Kealoha contends that the district court reversibly erred when it (1) expressly concluded that his Hawaii Revised Statutes (HRS) § 703-302 (1985) "choice of evils" defense applied to crimes but not violations and (2) failed to conclude that Kealoha's justification ("choice of evils") defense raised a reasonable doubt as to his guilt, HRS § 701-115(2)(a) (1985).

With respect to (1), the State correctly concedes that the "choice of evils" defense applies to violations. HRS §§ 703-301, 701-107(5), 701-107(7) (1985).

With respect to (2), Kealoha states that the question is

[w]hether the Trial Court erred in failing to rule that [Kealoha's] knowing refusal to pay a parking violation appropriately constituted an appropriate act of conscience under the "choice of evils" defense set forth in Hawaii Revised Statute Section 703-302, on the grounds that as a member of the community of Native Hawaiians who are entitled to specific rights and entitlements pursuant to the Hawaiian Homes Commission Act of 1920, as amended, and are also "beneficiaries" of lands which were originally "ceded lands" to be held for the benefit of descendants of the inhabitants of the Hawaiian Islands at the time of its annexation by the specific language of the Joint Resolution of Annexation of Hawaii, [Kealoha] was justified in symbolically refusing to make a small monetary payment as a result of his "violation" of the plenipotentiary power of the state (or its appropriately delegated political subdivision) to make traffic rules as to Molokai in light of the continuing breach of fiduciary duty by said state of these two covenants which constituted preconditions to the annexation of Hawaii as a territory and subsequently the admission of the territory as part of the U.S.?

We note for the record that Kealoha was found guilty of unauthorized overnight parking and not for refusing to pay a fine imposed on him for unauthorized overnight parking. We also note that in his opening brief Kealoha stated that the reason he parked overnight was "that he missed a plane and could not depart from Hilo."

When the defendant introduces evidence of facts constituting justification, the State has the burden of disproving those facts beyond a reasonable doubt. State v. McNulty, 60 Haw. 259, 588 P.2d 438 (1978). The issue is whether Kealoha introduced evidence of facts constituting justification. We conclude that he did not.

The "necessity" or "choice of evils" justification defense is set forth in HRS § 703-302(1)(a) (1985). It specifies the following requirements:

(1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to himself 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 § 703-300(1) (1985) states as follows: " 'Believes' means reasonably believes."

In State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973), the defendants had trespassed into Honeywell Corporation's Honolulu office in protest of Honeywell's actions related to the Vietnam conflict. In a case charging them with criminal trespass they interposed, inter alia, the "necessity" or "choice of evils" defense. The supreme court stated:

In essence, the "necessity" defense exonerates persons who commit a crime under the "pressure of circumstances," if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendants' breach of the law. The defense is not effective in the following situations:

(1) Where there is a third alternative available to to [sic] defendants that does not involve violation of the law, the 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, ... [defendant's] actions [must be] reasonably designed to actually prevent the threatened greater harm.

54 Haw. at 471-72, 509 P.2d at 1109.

Since the offenses in Marley predated the effective date of the Hawaii Penal Code, HRS Title 37, of which HRS § 703-302 is a part, Marley's analysis of the "necessity" of "choice of evils" defense was based on the common law. In our view, however, the Marley rationale is applicable in the construction of HRS § 703-302(1), (2).

In Kealoha's case, the harm or evil sought to be prevented by the law defining the offense charged was the unauthorized parking of an automobile in violation of HRS § 291C-111 (1985). Kealoha describes the harm or evil sought to be avoided by his unauthorized parking in the following terms:

[E]very Hawaiian faces a choice not...