In re: DM.

… FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER …




                                                         Electronically Filed
                                                         Supreme Court
                                                         SCWC-XX-XXXXXXX
                                                         15-MAR-2023
                                                         08:07 AM
                                                         Dkt. 11 OP




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                              ---o0o---



                       In the Interest of DM


                          SCWC-XX-XXXXXXX

        CERTIORARI FROM THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; FC-J NO. 0101376)

                           MARCH 15, 2023

                McKENNA, WILSON, AND EDDINS, JJ.;
AND NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

                OPINION OF THE COURT BY EDDINS, J.

     A minor stabbed another minor.    The State prosecuted, and

the minor, DM, argued self-defense.    The family court rejected

his defense.   It ruled the prosecution had proven attempted

assault in the first degree beyond a reasonable doubt.

     In Hawaiʻi self-defense cases, the defendant’s subjective

belief drives an objective reasonableness standard.      Factfinders

wear the defendant’s headset and experience the event from that
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reality.      Then, from that perspective, the judge or jury

evaluates the objective reasonableness of the defendant’s

subjective belief that self-protective force was necessary.

        Here the family court inadequately assessed the

circumstances from DM’s perspective.         The court also misapplied

key self-defense elements: the use of deadly force and the duty

to retreat.

        Substantial evidence does not support DM’s adjudication.

We reverse.

                                     I.

        The State filed a petition that alleged DM violated Hawaiʻi

Revised Statutes (HRS) §§ 705-500 and 707-710, attempted assault

in the first degree. 1      After a bench trial, the family court

adjudicated DM as charged.

        DM contests the elemental facts.      The factual circumstances

are mostly undisputed.

        After midnight in June 2019, a large group of ‘Ewa Beach

teenagers socialized at One‘ula Beach Park (Hau Bush) in ‘Ewa

Beach.      Most drank alcohol.    The interior lights from open car

and truck doors lit up the pitch-black area.


1     A person commits attempted assault in the first degree if the person
“intentionally engages in conduct which, under the circumstances as the
person believes them to be, constitutes a substantial step in a course of
conduct intended to culminate in the person’s commission” of assault in the
first degree, which is committed if the person “intentionally or knowingly
causes serious bodily injury to another person.” HRS §§ 705-500 (2014), 707-
710 (2014).

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       DM and his cousin heard about the gathering on social

media.    The cousin drove to Hau Bush.       DM did not know anyone

there.    Soon DM met some girls.       As they talked, a shirtless

teen (CW) obtruded.    CW appeared “sketchy,” so DM suggested he

leave.    CW left.

       But soon CW returned.   He harassed a girl who was talking

with DM.    CW called her “bitch” and “slut.”       DM stood up for

her.    Then CW challenged DM to fight.       DM said he didn’t want

any problems and asked CW to leave.         CW did not leave this time.

CW asked DM where he was from.      DM replied, Kalihi, and the two

teens argued.

       Then, things got physical.       CW rushed DM.   He punched DM

several times.    DM fought back.       CW’s friends and others jumped

in, pulled CW off DM, and pushed DM away.         CW’s friends

restrained and tried to reason with him.         But CW didn’t listen;

he broke from his friends’ grasp.

       Again, CW rushed and punched DM.       He tackled DM to the

ground.    As before, DM fought back.       The two wrestled and

punched each other.    Other teens entered the fray.        One of CW’s

friends said he “grabbed” DM and “walked away with him.”           CW’s

friends pulled him off and away from DM.         They held CW and tried

to settle him down.    For unknown reasons, other fights broke

out.    Hau Bush had turned “chaotic” and “rowdy.”



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       The crowd closed in.     DM did not see his cousin.    To DM,

“the whole ‘Ewa Beach” was there.        DM darted to his cousin’s car.

He got his work knife and faced the crowd, a few feet from the

car.    Only about ten to fifteen seconds had gone by since he had

been attacked.    Holding his knife, DM warned: “Who like get

stab?”

       The crowd stopped or backed off, except CW.       Despite his

friends’ grip, he broke free, yet again.        He launched into the

air, tackling DM.      DM never moved from his spot, next to the

car.

       CW landed atop DM.   He unleashed a flurry of punches.        DM

held his arms over his face.       Soon CW rolled off DM.    DM had

stabbed CW, once, in the abdomen.        DM got up.   He found his

cousin and told him he had “accidentally” stabbed someone.           The

cousin quickly drove them away.

       DM testified.   He detailed the verbal and physical

confrontations with CW.       He described how CW rushed him the

second time.    They fought on the ground.      Another teen punched

DM in the head.    DM described this attack as being “side-blinded

from somebody else.”      Then DM recounted, another person hit him:

he “got punch[ed] again.       And I was looking.     I was tripping out

. . . [c]hoke people was getting nuts.”        DM was scared.   “Like

had a lot of people.      I was getting whack.    I was outnumbered.”



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        DM dashed to his cousin’s car and grabbed his work knife;

it had a three to four-inch blade.            He hoped the crowd would

back off.      DM stayed put, near his cousin’s car.          CW and other

teens advanced: “[h]ad more boys coming to rush me.”              They were

ten feet from him.        DM warned: “Who like get stab?”        DM did not

want to hurt anybody.        Instead, he wanted to “make them back

away.”      They slowed or backed away, but not CW.

        CW yelled “I no give a fuck if you have the knife” and

propelled into the air, tackling DM.            DM tried to “catch” or

“wrap” CW.      Then DM was on his back.        Astride DM, CW threw

several punches before rolling off him.            DM had stabbed CW.

        DM argued he lacked intent and acted in self-defense.

        The family court adjudicated DM as a law violator.            The

State had proven the elements of attempted assault in the first

degree.

        The court rejected DM’s defense.         DM’s use of deadly force

was not objectively reasonable.             DM could not stab CW “under the

circumstances.” 2




2       Findings of Fact (FOF) #41 reads:

              41. While [DM] may have subjectively believed that such
              deadly force was necessary, the Court does not find that
              the amount of force used was objectively reasonable under
              the circumstances of this case, beginning and culminating
              with getting the knife from the vehicle, coming out of the
              vehicle instead of staying in the vehicle, making a
              threatening statement and ultimately resulting in [DM]
              stabbing [CW].

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        The court also found that DM’s use of deadly force

comprised not just the stabbing, but also the steps leading up

to it: “retrieving the weapon from the vehicle, coming out of

the vehicle with the weapon, making the threatening statement

and ultimately using the weapon does constitute deadly force.” 3

Further, the court found that DM “could have waited in the

vehicle or left the area with complete safety.” 4

        DM appealed.     DM challenges the court’s self-defense-

related findings and conclusions.           And citing State v. Lubong,

77 Hawaiʻi 429, 433, 

 (App. 1994), DM argues the

court did not properly assess the circumstances from his

“shoes.”



3       FOF #42 reads:

              42. The mere brandishing and/or threat to cause death or
              serious bodily injury by the production of a weapon so long
              as the actor’s intent is limited to creating an
              apprehension does not in and of itself constitute deadly
              force. However, retrieving the weapon from the vehicle,
              coming out of the vehicle with the weapon, making the
              threatening statement and ultimately using the weapon does
              constitute deadly force.

4       FOF #37 reads:

              37. [DM] could have gone to the vehicle and instead of
              getting the knife, could have extricated himself from the
              situation if he stayed in the vehicle or he could have left
              the area but chose not to do so.

        Conclusions of Law (COL) #12 reads, in part:

              12. [DM] left the area to obtain a weapon, the knife, from
              a vehicle and returned and stated “who like get stabbed.”
              The confrontation was broken up, but [DM] chose to return
              with the weapon, ultimately stabbing [CW]. [DM] could have
              waited in the vehicle or left the area with complete
              safety.

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     The State counters that the record supports the court’s

ruling.    It argues the family court properly evaluated the

evidence and rejected DM’s self-defense claim.

     The Intermediate Court of Appeals (ICA) affirmed the family

court in a memorandum opinion with a dissent.     The ICA concluded

the court did not err, and the State had presented sufficient

evidence to establish that DM intended to stab CW without lawful

justification.

                                 II.

     We conclude the family court wrongly rejected DM’s defense.

     The court inadequately assessed DM’s conduct from his

perspective.

     The family court also misapplied key self-defense elements.

Because DM’s actions before he stabbed CW did not constitute

deadly force, the court erred.    Next, the court misapplied the

duty to retreat.    Third, there were not separate fights as the

court found, but rather one violent event between DM and CW.

Lastly, the court overlooked evidence about DM defending himself

against multiple attackers.

                                 A.

     The court temporally bumped up the analysis of two central

self-defense elements: the use of deadly force and the duty to

retreat.   The court’s approach, we believe, skewed its

subjective and objective analysis.

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        DM did not use deadly force before he stabbed CW.            Thus,

the court erred in FOF #42 when it ruled that “retrieving the

weapon from the vehicle, coming out of the vehicle with the

weapon, making the threatening statement and ultimately using

the weapon does constitute deadly force.”            True, “using the

weapon” does constitute deadly force.           But DM’s other actions do

not constitute deadly force.

        The use of deadly force, not actions before a person uses

deadly force, constitutes deadly force.            Deadly force means

“force which the actor uses with the intent of causing or which

the actor knows to create a substantial risk of causing death or

serious bodily harm.”        HRS § 703-300 (2014) (emphasis added).

DM used deadly force at the moment he stabbed CW.              Not before.

See State v. Pemberton, 

, 

 (1990)

(focusing on the defendant’s perspective “at the time [they]

tried to defend [themselves]” with deadly force).

        DM’s pre-stab conduct did not constitute deadly force for

another reason.       CW attacked DM.       DM did not “provoke[] the use

of force against him.” 5       So, under the circumstances, DM could



5     No one claimed DM provoked the use of force against himself.    HRS
§ 703-304(5)(a) (2014) reads:

              The use of deadly force is not justifiable under this
              section if:
              (a) The actor, with the intent of causing death or serious
              bodily injury, provoked the use of force against himself in
              the same encounter[.]


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produce his knife and threaten the crowd without those actions

constituting deadly force.     “A threat to cause death or serious

bodily injury, by the production of a weapon or otherwise, so

long as the actor’s intent is limited to creating an

apprehension that the actor will use deadly force if necessary,

does not constitute deadly force.”     HRS § 703-300.

     The evidence showed DM intended to create apprehension that

if necessary, he would use deadly force.     CW and others had

attacked DM and a crowd was “coming to rush” him.       DM felt

outnumbered.    He did not want to hurt anybody.    He just wanted

to “make them back away.”    DM stayed in the same spot, near his

cousin’s car.     And his words: “Who like get stab?” expressed an

intent limited to creating an apprehension that he would use

deadly force, if necessary.

     Contrary to the court’s finding, there was no deadly force

when DM got his knife and cautioned the crowd.

                                  B.

     Turning to the duty to retreat, the court misapplied the

law there, too.

     Hawaiʻi law does not require a person to retreat before

using deadly force.    That is, unless the person “knows that

[they] can avoid the necessity of using such force with complete




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safety by retreating.”       HRS § 703-304(5)(b) (emphases added). 6

It’s a purely subjective inquiry.

        The court gave no consideration to whether DM knew he could

retreat with complete safety.        It felt DM should have or could

have handled things differently; by, for instance, sitting in

his cousin’s car, a move DM feels would have made him “a sitting

duck.”

        There was no evidence to support the court’s recommended

pathways to compete safety.        And there was no evidence presented

(or considered by the court) regarding whether DM subjectively

knew he could sit in the car or leave the unfamiliar, lightless

area with complete safety.        See State v. Augustin, 101 Hawaiʻi

127, 128, 

 (2002) (explaining that a defendant

only has knowledge of circumstances when the defendant is

“aware” of the circumstances).

        The court discounted duty to retreat’s purely subjective

nature.      The duty to retreat depends on the actor’s perspective.

The factfinder considers what the defendant knows at the time.

“The use of deadly force is not justifiable under this section

if . . . [t]he actor knows that [they] can avoid the necessity

of using such force with complete safety by retreating . . .”



6     HRS § 703-304(5) provides: “The use of deadly force is not justifiable
under this section if . . . [t]he actor knows that [they] can avoid the
necessity of using such force with complete safety by retreating . . . .”


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HRS § 703-304(5) (emphasis added); State v. Mark, 123 Hawaiʻi

205, 226, 

 (2010) (applying the subjective

inquiry to the duty to retreat: “[n]othing in this testimony

indicates that Petitioner knew that he could avoid the necessity

of using deadly force by retreating,” and “Petitioner did not

testify as to any knowledge he may have had in regard to

avoiding the necessity of using force.”).

     Also, the family court prematurely applied the duty to

retreat analysis.     DM’s acts up until the stab did not

constitute deadly force.      There was no deadly force used when DM

grabbed the knife or when he produced it to scare the crowd.             DM

didn’t have a duty to retreat at those times. 7         The temporal

context for the retreat analysis occurs at the moment deadly

force is used or becomes imminent.        See Matter of Y.K., 

 (N.Y. 1996) (explaining the duty to retreat “d[oes]

not arise until the point at which deadly physical force was

used or imminent.”).

     Contrary to the court’s finding, the duty to retreat kicked

in at the moment CW broke free from his friends and rushed DM.

Even if DM could have safely left before that time, he had no



7     There is no duty to retreat when force is used. But if a person uses
deadly force, there is a duty to retreat. To the extent the family court
treated DM’s “threat” – “Who like get stab?” - as “force” to boost its use
of “deadly force” finding, it also erred. “Force” means any “bodily
impact . . . or the threat thereof.” HRS § 703-300.


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legal duty to do so - he had not yet used deadly force.               HRS

§§ 703-300, 703-304(5)(b).         Nothing in the record shows that -

at the time CW attacked - DM knew he could retreat with complete

safety without using deadly force.

                                       C.

        The family court failed to adequately assess and credit

DM’s perspective in another key way.           The court split the event

into separate fights. 8       But there were not separate fights

between DM and CW.        Rather, there was one continuous violent

event between DM and CW.         The court’s multiple-fights finding is

clearly erroneous.        See In re Doe, 95 Hawaiʻi 183, 190, 

 (2001) (principle that a finding by the family court

“is clearly erroneous when (1) the record lacks substantial

evidence to support the finding, or (2) despite substantial


8     The court’s multiple fights findings include COL #12 and FOF numbers
23, 29, 38, 39:

              23. After the fight was broken up, it was at that point
              that [DM] went over to a vehicle, the Nissan Altima that
              his cousin had driven him to Hau Bush in. [DM] retrieved a
              knife that he used for work. Upon retrieving the knife,
              [DM] exited the vehicle, and yelled out “who like get
              stabbed.”

              29. After the second altercation, when [DM] extricated
              himself from the situation, [DM] went to the vehicle,
              obtained a knife from the vehicle, came back out of the
              vehicle with the knife, and stated “who like get stabbed.”
              At that point, [CW] charged at [DM].

              38. [DM] was entitled to utilize self-defense in the first
              altercation.

              39. When the second altercation occurred, [DM] was also
              entitled to use self-defense, but only such force that was
              reasonably necessary under the circumstances.

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evidence in support of the finding, the appellate court is

nonetheless left with a definite and firm conviction that a

mistake has been made.”).

     The court believed the fight between CW and DM mostly

ended, restarted, then ended, before DM stabbed CW in yet

another fight.   Fights, though, are unpredictable.     They often

rapidly unfold and evolve.    Lulls happen.    Danger recedes and

surges.   A fight’s end is sometimes murky.

     Only about 10-15 seconds passed between DM rising from the

ground and facing the crowd with his knife.      Before then, CW had

escaped his friends’ hold and attacked DM.      Others also attacked

him, DM believed.   And before that, CW attacked DM - after DM

aided a girl who CW had vulgarly harassed.

     To DM, there were no rounds, no multiple fights, just one

continuous event.   The family court did not adequately consider

DM’s perspective.

                                 D.

     The court disregarded DM’s perspective relating to another

self-defense feature.   DM believed he faced peril from multiple

attackers.   Since DM used deadly force, which the court deemed

objectively unreasonable, this mattered.      See State v. DeLeon,

143 Hawaiʻi 208, 218, 

 (2018) (stating that a

person who faces other attackers presents “an exception to the



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general rule that a claim of self-defense fails when deadly

force is used to stop a simple assault.”).

        DM believed that others besides CW had attacked him.               As he

fought with CW, someone else punched him in the head.               Then,

another person landed a punch.          DM was getting “whacked.”      9    This

happened right before DM darted to his cousin’s nearby car.

        The family court ignored, or at least severely undervalued,

DM’s experiences and point of view at the moment he used deadly

force.      CW had attacked DM more than once.        Others also

assaulted him. 10     People were rowdy, going nuts in the pitch-

black area.      DM wasn’t from there.       He felt outnumbered.      DM

thought the ‘Ewa Beach crowd was about to rush him.

        The court failed to consider DM’s belief that deadly force

was necessary to protect himself from serious physical harm by




9     The family court did not find that DM’s testimony in this respect
lacked veracity:

              36. [DM] claimed he was assaulted not only by [CW] but that
              somebody else had struck him, which then caused him to
              extricate himself from the situation and go to the vehicle.

        The court made one finding that DM’s testimony was not credible:

              27. [DM] testified that the stab was an accident, and that
              he was trying to hug and/or catch [CW]. The Court does not
              find that to be credible testimony. The Court finds that
              [DM] did in fact stab, and did intend to stab the
              complaining witness with the knife that was produced.

10    There was evidence to support DM’s fear from other attackers. CW’s
friend got physical with DM. He testified that he “grabbed” DM and “walked
away with him.”

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more than one attacker. 11     DeLeon, 143 Hawaiʻi at 218, 

.

                                    III.

       A subjective and objective inquiry guides Hawaiʻi’s self-

defense law.    In self-D cases, the factfinder’s decision pivots

on the objective reasonableness of the defendant’s subjective

belief about the need to use force or deadly force. 12           State v.

Culkin, 97 Hawaiʻi 206, 217, 

 (2001).

       The family court concluded that DM “may have subjectively

believed” deadly force was necessary.         Then the court skipped to

the objective analysis:

            41. While [DM] may have subjectively believed that such
            deadly force was necessary, the Court does not find that
            the amount of force used was objectively reasonable under
            the circumstances of this case, beginning and culminating
            with getting the knife from the vehicle, coming out of the
            vehicle instead of staying in the vehicle, making a
            threatening statement and ultimately resulting in [DM]
            stabbing [CW].

       We conclude that the family court inadequately considered

DM’s perspective.     It found that DM’s subjective belief was

objectively unreasonable without appraising DM’s point of view.


11    Defendants may use deadly force if they believe it is necessary to
protect themselves against death or serious bodily injury. HRS § 703-304(2).
“‘Serious bodily injury’ means: bodily injury which creates a substantial
risk of death or which causes serious, permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or organ.” HRS
§ 707-700 (2014 & Supp. 2019).

12    This case involves deadly force. DM concedes he used deadly force when
he stabbed CW with a knife. Deadly force means “force which the actor uses
with the intent of causing or which the actor knows to create a substantial
risk of causing death or serious bodily harm.” HRS § 703-300.


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The court shortchanged DM’s perspective.          And this tilted its

objective analysis.

      HRS § 703–304(2) describes the subjective part.           The use of

deadly force in self-protection is justified “if the actor

believes that deadly force is necessary to protect [themselves]

against death, serious bodily injury, kidnapping, rape, or

forcible sodomy.” 13

      HRS § 703-300 brings the objective part.          It defines

“believes” as “reasonably believes.”

      Once the type of force is determined, a two-step inquiry

happens.    In deadly force cases, the factfinder first decides

whether the defendant subjectively believed that deadly force

was necessary.     Then, if so, the judge or jury decides whether

that belief was objectively reasonable.          But how?

      The defendant’s perspective provides the evidentiary scope

for the objective analysis.       The defendant’s sensory and pre-

deadly force experiences control the factfinder’s objective

evaluation.    See Pemberton, 

, 

13    Compare HRS § 703-304(1) regarding the use of non-deadly force (“the
use of force . . . is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting [themselves] against the
use of unlawful force by the other person on the present occasion”) (emphasis
added) with HRS § 703-304(2) regarding deadly force (“the use of deadly force
is justifiable . . . if the actor believes that deadly force is necessary to
protect [themselves] against death, serious bodily injury, [etc.]”) (emphasis
added).

      Hawaiʻi Standard Jury Instructions, Criminal (HAWJIC) 7.01A misstates
HRS § 703-304(2). For deadly force cases, it adds the adverb “immediately.”


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(principal that “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

Defendant’s position under the circumstances as [they] believed

them to be.”); Lubong, 77 Hawaiʻi at 433, 

(explaining that “[i]n evaluating the reasonableness of a

defendant’s belief that deadly force was necessary for self-

protection, the evidence must be assessed from the standpoint of

a reasonable person in the defendant’s position under the

circumstances as the defendant subjectively believed them to be

at the time [they] tried to defend [themselves].”).

     The court bypassed DM’s perspective of the event.      There

were not separate, divisible fights, as the court believed.       And

CW did not pose the only danger to DM.     Also, temporally, the

court incorrectly advanced DM’s use of deadly force, as well as

DM’s duty to retreat.    Further, the court overlooked DM’s

subjective belief that he could not retreat with complete

safety.    These analytical flaws, we conclude, improperly

impacted the court’s objective analysis.

     A defendant’s circumstances - what they think, see, hear,

touch, smell, and (sometimes even) taste - frame the objective

inquiry.    Because the defendant’s subjective belief shapes the

objective standard, the judge or jury wears the defendant’s

headset and enters the defendant’s reality.     See Lubong, 77

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Hawaiʻi at 433, 

 (instructing that “[t]he

factfinder is required to place itself in the shoes of the

defendant, determine the point of view which the defendant had

at the time of the incident, and view the conduct of the victim

with all its pertinent sidelights as the defendant was warranted

in viewing it.”) (Cleaned up.)

     We are unconvinced that the family court satisfactorily

assessed DM’s perspective.     CW attacked DM, more than once.

Someone else punched DM in the head.       And DM thought another

teen also hit him.   The chaotic crowd in the unfamiliar,

darkened area scared DM.     They were nuts.    DM believed the fight

with CW had dangerously ripened.       He thought others endangered

him; DM felt outnumbered.     “The whole ‘Ewa Beach” was there.

     DM got the knife to make the crowd withdraw.       Yet, after DM

retrieved the knife, CW and others still advanced.       DM recalled:

“had more boys coming to rush me.”       They were close, ten feet

away.   DM stayed put.    Only seconds had passed since CW and

others had struck him while he was on the ground.       DM warned:

“Who like get stab?”     He didn’t want to hurt anybody, he said.

DM just wanted to “make them back away.”       It didn’t work.   CW

rushed, tackled, and punched DM.       DM stabbed him, once.

     We conclude that the family court inadequately assessed the

circumstances from DM’s perspective.       The court’s slight

treatment of DM’s subjective beliefs and the court’s errors

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relating to the use of deadly force and the duty to retreat,

marred the court’s objective analysis.

      Under the circumstances of this case, we find that there

was not substantial evidence presented to support the family

court’s conclusion that the State proved beyond a reasonable

doubt that DM’s use of deadly force was unjustified. 14

                                     IV.

      We vacate the ICA’s Judgment on Appeal.          We reverse the

Family Court of the First Circuit’s Order Re: Motion for

Reconsideration of Order Adjudicating DM of Attempted Assault in

the First Degree and Restitution Filed October 29, 2019 and the

Findings of Fact and Conclusions of Law entered by the family

court on July 24, 2020.

Phyllis J. Hironaka                        /s/ Sabrina S. McKenna
for petitioner                             /s/ Michael D. Wilson
                                           /s/ Todd W. Eddins
Loren Thomas
for respondent




14    As we explained in State v. Martinez:

            We have long held that evidence adduced in the trial court
            must be considered in the strongest light for the
            prosecution when the appellate court passes on the legal
            sufficiency of such evidence to support a conviction; the
            same standard applies whether the case was before a judge
            or a jury. The test on appeal is not whether guilt is
            established beyond a reasonable doubt, but whether there
            was substantial evidence to support the conclusion of the
            trier of fact.

101 Hawaiʻi 332, 338, 

 (2003) (cleaned up).

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