State v. McNulty

• Decision Date: 28 December 1978
• Docket Number: No. 5978,5978
• Citation: 588 P.2d 438,60 Haw. 259
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Donald Angus McNULTY, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 438

588 P.2d 438

60 Haw. 259

STATE of Hawaii, Plaintiff-Appellee, v. Donald Angus McNULTY, Defendant-Appellant.

No. 5978.

Supreme Court of Hawai'i.

Dec. 28, 1978.

Syllabus by the Court

1. Justification is not an affirmative defense within the meaning of HRS § 701-115 (1976) and, as such, once evidence of justification has been adduced at trial, the prosecution has the burden of disproving the facts constituting justification beyond a reasonable doubt.

2. When scrutinizing alleged error in jury instructions, we must examine them in their entirety.

3. While a refusal by the trial court to charge the jury as to the state's burden of disproving self-defense may constitute reversible error, where the defendant voluntarily withdraws such an instruction and fails to object to its omission, he may not later challenge the propriety of the court's charge on appeal.

4. Although we have the power, Sua sponte, to notice plain errors affecting substantial rights not objected to at trial, we will not exercise such power where a specific burden of proof instruction relating to the accused's interposed defense was omitted without objection and the court's general burden of proof instruction was not otherwise misleading.

5. A motion for new trial based on newly discovered evidence will only be granted if (1) the evidence has been discovered after trial; (2) such evidence could not have been discovered before or at trial through the exercise of due diligence; (3) the evidence is material to the issues and not cumulative or offered solely for purposes of impeachment; and (4) the evidence is of such a nature as would probably change the result of a later trial.

6. The denial of a motion for new trial is within the sound discretion of the trial court and will not be upset absent a clear abuse of discretion.

7. In determining whether evidence is, in truth, newly discovered and whether sufficient diligence was used to learn of such 8. A party is not entitled to a new trial on the ground of newly discovered evidence unless he affirmatively demonstrates that due diligence was used by himself and his counsel to procure such evidence prior to the conclusion of trial.

evidence, the composite knowledge of both the accused and his counsel will be considered.

9. In order to establish inadequacy of counsel, the appellant must demonstrate that his counsel's actions at trial were both unreasonable and the result of constitutionally inadequate preparation rather than informed judgment.

10. The failure of counsel to assert every novel, albeit plausible, legal theory in the defense of an accused does not in itself reflect his ignorance of the law.

11. The decision of whether or not to call a witness in a criminal trial is normally a matter within the judgment of counsel and, accordingly, will rarely be second guessed by judicial hindsight.

David Schutter, Jan M. Weinberg, Honolulu (Schutter, O'Brien & Weinberg, Honolulu, of counsel), for defendant-appellant.

Lydia Garcia, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

RICHARDSON, Chief Justice.

Defendant-appellant, Donald Angus McNulty, appeals from a judgment of conviction for murder and from an order denying his motion for new trial.

We affirm.

On February 21, 1975, appellant was charged with committing the offense of murder in violation of HRS § 707-701 (1976). ¹ The indictment that followed alleged that on or about February 19, 1974, appellant "intentionally or knowingly" shot and killed Dion Yancey Cagle. On the basis of appellant's indigency, private counsel was appointed to undertake his defense. ²

A jury trial was initiated on June 16, 1975. During the course of trial, appellant conceded that he had shot Cagle but argued that he had done so in self-defense. Thereafter, appellant was found guilty of murder and sentenced to imprisonment for a period of twenty years.

On September 25, 1975, appellant's appointed counsel withdrew from the case and new counsel was retained to prosecute the instant appeal. Appellant, through his new counsel, then filed a motion for new trial on the ground that newly discovered evidence had surfaced. After a full evidentiary hearing on the matter, the trial court denied this motion.

On appeal, McNulty urges reversal of his conviction and of the order denying new trial on the following grounds: (1) the trial court erred in failing to specifically instruct the jury that, in order to convict appellant of murder or the lesser-included offense of manslaughter, the State must prove the absence of self-defense beyond a reasonable doubt; (2) the trial court erred in failing to instruct the jury that it could convict appellant of no greater offense than manslaughter if it found that he had an actual, although unreasonable, belief that his use of deadly force against Cagle was necessary to protect him against death or serious bodily injury; (3) the trial court erred in instructing the jury that, in order for the use of deadly force to have been justified, the danger to the appellant must have been Imminent ; (4) the trial court erred in denying appellant's motion for new trial on the ground that the proffered evidence was not newly discovered; and (5) appellant was denied effective assistance of counsel at his trial.

JURY INSTRUCTIONS

Appellant contends that the trial court erred in neglecting to specifically instruct the jury that the state had the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense at the time of the alleged crime. He argues that such an omission could have led the jury to believe that it was the accused's burden to prove self-defense and thus denied him of his right to a fair trial.

HRS § 703-301 (1976) ³ provides that justification, including the use of force in self-defense, is a complete defense in any prosecution for an offense. Justification is not an affirmative defense within the meaning of HRS § 701-115 (1976) and, as such, once evidence of justification has been adduced at trial, the prosecution has the burden of Disproving, beyond a reasonable doubt, the facts constituting justification. ⁴

In the instant case, the jury was given the following self-defense instruction:

In order to justify the taking of human life in self-defense, the defendant must reasonably and honestly believe that he is in danger of death or of serious bodily injury; and further, he must believe that it was necessary for him to use, in his defense and to avoid death or serious bodily injury to himself, such force or means as might cause the death of his adversary. The danger to the defendant must be apparent and must be present and imminent, and the killing must be done under a well-founded belief that it is necessary to save one's self from death or serious bodily injury.

The kind and degree of force which a person may lawfully use in self-defense are limited by what a reasonable person in the same situation as such person, seeing what he sees and knowing what he knows, then would estimate and thus believe to be necessary. Any use of force beyond that is regarded by the law as excessive. Although a person may believe that he is acting, and may act, in self-defense, he is not justified in using a degree of force clearly in excess of that apparently and reasonably necessary under the existing facts and circumstances.

Although this instruction was preceded by a general instruction as to the prosecution's burden of proving all elements of the offense of murder, and the lesser-included offense of manslaughter, no specific charge that the prosecution had the burden of proving the Absence of self-defense was given. ⁵ The record indicates that, although When scrutinizing alleged error in jury instructions, we must examine the instructions in their entirety. State v. Shon, 47 Haw. 158, 168, 385 P.2d 830, 837 (1963); State v. Yoshida, 45 Haw. 50, 64, 361 P.2d 1032, 1040 (1961). Here, we believe that the court's instructions, taken as a whole, were less than ideal. In failing to specifically allocate the burden of disproving self-defense to the state, the instructions could have permitted the jury to believe that the appellant, having raised the issue of justification, was obligated to prove it. See United States v. Corrigan, 548 F.2d 879 (10th Cir. 1977); Frazier v. Weatherholtz, 411 F.Supp. 349 (W.D.Va.1976); Cf. Pratti v. United States, 389 F.2d 660, 661-62 (9th Cir. 1968) (refusal of the trial court to instruct the jury that the prosecution had the burden of negating defendant's defense of entrapment constituted reversible error); Notaro v. United States, 363 F.2d 169 (9th Cir. 1966) (misleading jury instruction as to the prosecution's burden of proving absence of entrapment defense required reversal).

appellant's trial counsel had initially requested such an instruction, it was later withdrawn during final settlement of instructions in chambers. ⁶

While refusal by the trial court to charge the jury as to the state's burden of disproving self-defense may in some cases constitute reversible error, See, e. g., United States v. Corrigan, supra, here, however, the specific burden of proof instruction was voluntarily withdrawn by the appellant and no objection to the court's instructions was raised. Under these circumstances, appellant may not now challenge the propriety of the court's charge. Rule 30(e), HRCrP (1960). See State v. Onishi, 59 Haw. 384, 581 P.2d 763 (1978); State v. Iaukea, 56 Haw. 343, 354-55, 537 P.2d 724, 733 (1975). See also Hankerson v. North Carolina, 423 U.S. 233, 244 n. 8, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Lopez v. United States, 373 U.S. 427, 436-37, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Although we have the power Sua sponte, to notice plain errors affecting substantial rights not objected to at trial, State v. Onishi, supra, other courts have consistently refused...