FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-FEB-2025 08:41 AM Dkt. 174 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
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STATE OF HAWAI#I, Plaintiff-Appellee, v. BRANDON REIS, Defendant-Appellant
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 1CPC-XX-XXXXXXX)
FEBRUARY 27, 2025
LEONARD, ACTING CHIEF JUDGE, HIRAOKA AND WADSWORTH, JJ.
OPINION OF THE COURT BY HIRAOKA, J.
Brandon Reis was indicted for Attempted Murder in the
Second Degree, among other crimes. He claimed he was defending
himself. A jury found him guilty as charged. He contends the
jury was erroneously instructed — based on Hawai#i Standard Jury
Instructions Criminal (HAWJIC) 7.01A — that use of deadly force
in self-defense must be "immediately necessary." We hold, based
on the plain language and legislative history of Hawaii Revised
Statutes (HRS) § 703-304 (2014), that the challenged instruction FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
was erroneous. There was a reasonable possibility the error
contributed to Reis's conviction. The evidence was sufficient to
support the verdict. Accordingly, we vacate the August 29, 2019
Judgment of Conviction and Sentence entered by the Circuit Court
of the First Circuit1 and remand for a new trial.
I. BACKGROUND
A grand jury indicted Reis for (1) Attempted Murder in
the Second Degree;2 (2) Carrying or Use of Firearm in the
Commission of a Separate Felony;3 (3) Ownership or Possession
Prohibited of any Firearm or Ammunition by a Person Convicted of
Certain Crimes;4 (4) Place to Keep Pistol or Revolver;5 and
(5) Ownership or Possession Prohibited of any Firearm or
Ammunition by a Person Indicted for Certain Crimes6. The
indictment was based on alleged events of June 22, 2016.
Reis stipulated to these facts before trial:
On January 28, 2002, [Reis] was convicted of a felony.
On January 29, 2013, [Reis] was under indictment for a felony.
On June 22, 2016, [Reis] knew that he had been convicted of a felony. On June 22, 2016, [Reis] knew that he was under indictment for a felony.
1 The Honorable Karen T. Nakasone presided. 2 HRS §§ 705-500 (2014), 707-701.5 (2014), and 706-656 (2014). 3 HRS § 134-21 (2011). 4 HRS § 134-7(b), (h) (2011). 5 HRS § 134-25 (2011). 6 HRS § 134-7(b), (h).
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On June 22, 2016, [Reis] did not have a license to carry a pistol, revolver, or ammunition on his person issued by the Chief of Police for the City and County of Honolulu, State of Hawai#i. On June 22, 2016, [Reis] did not have a firearm registered to him.
Reis did not stipulate he carried, used, owned, or
possessed a firearm or ammunition on June 22, 2016.
Trial began on October 23, 2018. Reis did not testify,
but argued he acted in self-defense. A jury found him guilty as
charged on all counts. The trial court dismissed counts 4 and 5
based on merger. Reis was sentenced to life with the possibility
of parole on count 1 (attempted murder), 20 years on count 2 (use
of firearm), and 10 years on count 3 (possession of firearm), to
be served concurrently. This appeal followed.7
II. POINTS OF ERROR
Reis states five points of error: (1) the
Tachibana/Torres colloquy8 was inadequate; (2) the jury was
instructed that use of deadly force in self-defense must be
"immediately necessary"; (3) the trial court refused to give his
7 Disposition of this appeal was significantly delayed because of two defaults in filing the opening brief, three remands to the circuit court for appointment of substitute counsel for Reis, an extension of time to file transcripts, and several extensions of time to file the opening brief requested by Reis's new court-appointed appellate counsel. 8 See Tachibana v. State, 79 Hawai#i 226, 236, 900 P.2d 1293, 1303 (1995) ("[W]e hold that in order to protect the right to testify under the Hawai#i Constitution, trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify.") (footnote omitted); State v. Torres, 144 Hawai#i 282, 294–95, 439 P.3d 234, 246–47 (2019) ("[W]e hold that trial courts are required to engage in an on-the-record colloquy with a defendant when the defendant chooses to testify to ensure that a waiver of the right not to testify is knowing, intelligent, and voluntary.").
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proposed jury instruction on ignorance or mistake of fact;
(4) the trial court denied his motion in limine to preclude Kyen
Knowles's girlfriend from testifying about her telephone
conversation with Knowles; and (5) the trial court denied his
motion for judgment of acquittal based on insufficient evidence.
Points (2) and (5) are dispositive.
III. STANDARDS OF REVIEW
A. Jury Instructions
The jury instruction at issue was proposed by Reis.
But "the duty to properly instruct the jury lies with the trial
court[.]" State v. Nichols, 111 Hawai#i 327, 335, 141 P.3d 974,
982 (2006). "Where instructions were not objected to at trial,
if the [defendant] overcomes the presumption that the
instructions were correctly stated, the rule is that such
erroneous instructions are presumptively harmful and are a ground
for reversal unless it affirmatively appears from the record as a
whole that the error was not prejudicial." Id. at 334-35, 141
P.3d at 981-82. B. Sufficiency of Evidence
We consider the evidence in the strongest light for the
prosecution when reviewing its legal sufficiency to support a
conviction. State v. Sheffield, 146 Hawai#i 49, 53, 456 P.3d
122, 126 (2020). "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." Id.
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IV. DISCUSSION
A. The jury instruction on use of deadly force in self-defense was erroneous.
(1) Reis claimed he acted in self-defense when he
fired a gun in Knowles's direction. He contends the jury was
erroneously instructed that use of deadly force in self-defense
must be "immediately necessary."
HRS § 703-304 provides, in relevant part:
(1) Subject to the provisions of this section and of section 703-308 [concerning use of force to prevent suicide or the commission of a crime], the 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.
(2) The use of deadly force is justifiable under this section if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy.
(Emphasis added.)
The jury instruction at issue stated:
The use of deadly force upon or toward another person is justified if the defendant reasonably believes that deadly force is immediately necessary to protect himself on the present occasion against death or serious bodily injury or kidnapping. The reasonableness of the defendant's belief that the use of protective deadly 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 when the deadly force was used.
The instruction was modified from HAWJIC 7.01A, which
states, in relevant part:
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The use of deadly force upon or toward another person is justified if the defendant reasonably believes that deadly force is immediately necessary to protect himself/herself on the present occasion against [death] [serious bodily injury] [kidnapping] [rape] [forcible sodomy]. The reasonableness of the defendant's belief that the use of protective deadly 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 when the deadly force was used.
Reis cites In re DM, 152 Hawai#i 469, 526 P.3d 446
(2023), where the supreme court noted:
Hawai#i Standard Jury Instructions, Criminal (HAWJIC) 7.01A misstates HRS § 703-304(2). For deadly force cases, it adds the adverb "immediately."
Id. at 477 n.13, 526 P.3d at 454 n.13. But cf. State v. DeLeon,
131 Hawai#i 463, 487, 319 P.3d 382, 406 (2014) (stating that "the
jury instruction that the circuit court provided was based on
then-current HAWJIC 7.01, which this court has upheld as 'fully
consonant with the controlling statutory and case law of this
state.'" (footnote omitted) (quoting State v. Augustin, 101
Hawai#i 127, 127, 63 P.3d 1097, 1097 (2002)). The part of HAWJIC
7.01A at issue here is the same as the corresponding part of
HAWJIC 7.01. But neither DeLeon nor Augustin involved the
"necessary vs. immediately necessary" deadly force issue.
In re DM was a family court case involving a juvenile
defendant (where there is no jury) so jury instructions were not
at issue. "'Obiter dictum' is '[a] judicial comment made while
delivering a judicial opinion, but one that is unnecessary to the
decision in the case and therefore not precedential (although it
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may be considered persuasive).'" State v. Hussein, 122 Hawai#i
495, 533, 229 P.3d 313, 351 (2010) (Moon, C.J., concurring in
part and dissenting in part) (quoting Black's Law Dictionary 1102
(8th ed. 2004)). We are not bound by In re DM footnote 13. Nor
are we bound by DeLeon or Augustin, because neither decided the
"necessary vs. immediately necessary" issue.
We hold that the self-defense instruction given to the
jury misstated the plain language of HRS § 703-304(2), and was
contrary to legislative intent. When we interpret a statute, we
start with "the language of the statute itself." Barker v. Young, 153 Hawai#i 144, 148, 528 P.3d 217, 221 (2023). "[W]here
the statutory language is plain and unambiguous, our sole duty is
to give effect to its plain and obvious meaning."9 Id. The
plain language of HRS § 703-304(2) justifies a person's use of
deadly force if the person reasonably10 "believes that deadly
force is necessary to protect [themself] against death, serious
bodily injury, kidnapping, rape, or forcible sodomy." The adverb
"immediately" does not modify the adjective "necessary" in
subsection (2) of the statute, but it did in the deadly-force
jury instruction.
"[T]he trial court is not required to instruct the jury
in the exact words of the applicable statute but to present the
jury with an understandable instruction that aids the jury in
9 This canon ensures that members of the public can read a statute and conform their conduct according to its plain language, without having to read legislative committee reports or conduct other legal research. 10 For purposes of HRS § 703-304, "believes" means "reasonably believes." HRS § 703-300 (2014).
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applying that law to the facts of the case." State v. Metcalfe,
129 Hawai#i 206, 230, 297 P.3d 1062, 1086 (2013). That leads us
to ask: Why did the legislature omit the word "immediately" from
HRS § 703-304(2)? To find the answer, we may refer "to extrinsic
aids in determining legislative intent, such as legislative
history[.]" Barker, 153 Hawai#i at 148, 528 P.3d at 221.
The legislative history reveals the reason for the
omission and confirms our plain-language analysis. In 1975, HRS
§ 703-304(2) did not contain the word "immediately." That was a
subject of S.B. No. 516 (1975), introduced to amend various
sections of the Hawai#i Penal Code. The senate bill proposed
adding the word "immediately" to subsection (2):
(2) The use of deadly force is justifiable under this section if the actor believes that deadly force is immediately necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy.
S.B. No. 516, S.D.1 at 3, 8th Leg., Reg. Sess. (1975).
The Senate Judiciary Committee explained:
Section 703-704 [sic] was amended for purposes of clarification. At present, subsection (1) requires that the actor believe that the use of defensive force is immediately necessary. In subsection (2) the word "immediately" is absent. This has given rise to the contention that for deadly defensive force to be used, the defendant need not believe that the use of deadly force was immediately necessary to protect himself. This contention is erroneous but plausible because of the absence of the word "immediately" in subsection (2). Therefore, the amendment is necessary.
S. Stand. Comm. Rep. No. 590, in 1975 Senate Journal, at 1057.
The House Judiciary Committee disagreed:
Your Committee . . . made the following changes to S.B. No. 516, S.D.1.
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1. The word "immediately" on Page 3 of the bill was deleted. Adding the requirements that a person being attacked determine the immediacy of the need to use deadly force presents to [sic] great a burden upon that person. Such a person is already forced into a position of fear and apprehension that would make a reasoned determination of immediacy impossible.
H. Stand. Comm. Rep. No. 720, in 1975 House Journal, at 1306-07.
The Senate disagreed with the House draft. A conference
committee was appointed. The conference draft kept the House's
change. The adverb "immediately" remained missing from
subsection (2).
The State argues the jury instruction is supported by
the Model Penal Code, and a ruling that the instruction was
erroneous would lead to absurd results. Those arguments are not
persuasive given the clear legislative intent to differentiate
the justification for use of deadly force to protect against
specific harms and offenses — death, serious bodily injury,
kidnapping, rape, or forcible sodomy — from use of force in
general to protect against any unlawful force.11
We hold that use of the adverb "immediately" before the
adjective "necessary" in the deadly-force instruction was
contrary to the plain language of HRS § 703-304(2) and the
legislature's intent to omit the adverb, and was thus error.
HAWJIC 7.01A misstates the law in that respect, and should no
longer be used by our trial courts.
11 "Unlawful force" means "force which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or would constitute an offense except for a defense not amounting to a justification to use the force. Assent constitutes consent, within the meaning of this section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious or substantial bodily injury." HRS § 703-300.
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(2) "[O]nce instructional error is demonstrated, we
will vacate, without regard to whether timely objection was made,
if there is a reasonable possibility that the error contributed
to the defendant's conviction[.]" Nichols, 111 Hawai#i at 337,
141 P.3d at 984. Reis did not testify, so the jury had to
consider other evidence to determine whether "a reasonable person
in [Reis's] position under the circumstances of which [Reis] was
aware or as [Reis] reasonably believed them to be" would believe
"that the use of protective deadly force was immediately
necessary[.]"
The evidence showed that Reis was part of a group of
men who argued with Knowles at a Kalihi fast food restaurant.
Someone challenged someone to fight. But there was no fight, and
everyone left. State's Exhibit 1, footage from a surveillance
camera at a business on Waterhouse Street in Kalihi, showed what
happened about an hour and a half later. A red car comes down
Waterhouse Street and parks on the far side. A silver Lexus
appears. A male — allegedly Reis — gets out of the red car as
the Lexus is parking on the near side. The male starts crossing
Waterhouse Street and appears to remove an object from his
shoulder bag. The Lexus reverses out of its parking space,
turning as if to continue down Waterhouse Street. Without
breaking stride, the male walks around the reversing Lexus,
raises his right arm, points it at the Lexus, and appears to fire
a shot into the rear passenger door toward the driver, later
identified as Knowles. Knowles opens the door while the Lexus is
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still moving backwards, gets out, and is hit by the open door.
Knowles falls and is pinned under the left front wheel. The
person alleged to be Reis walks around the front of the Lexus and
looks at Knowles, who is pinned under the wheel and flailing his
legs. Reis runs to the red car and leaves. This all happens in
about 30 seconds.
The defense argued that Knowles had followed Reis to
Waterhouse Street:
A car coming towards him, driven by the man who had called him and -- Brandon and his friends out, the 5-foot-10, 256-pounder, which we know Brandon is not that size, who bragged that he could roll with the best of them, had followed Brandon for an hour and a half. He was scared. Couldn't retreat. It was too late. Brandon -- Knowles did not give Brandon the chance to retreat when he suddenly reversed towards him.
Think about it. When you think about it from Brandon's point of view, the car was coming right at him. Just showing the gun didn't stop him. So he had to choose between firing a warning shot or risk being run over and attacked. And only when the Lexus was almost on him, Brian fired -- I mean, Brandon fired once. And it was an understandable choice, given the situation that Knowles had placed him in.
The State argued:
When you use deadly force, it must be immediately necessary, not in 30 seconds, not in a minute, not in ten seconds. That moment. You cannot use a gun and shoot at somebody unless it is immediately necessary. Essentially you have to have no other choice but then to shoot this person or shoot at this person.
A jury could have found, based on the evidence, that
although Reis's use of deadly force may not have been immediately
necessary, Reis could reasonably have believed it was necessary
to use deadly force to protect himself against death or serious
bodily injury posed by a physically intimidating person with whom
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he had argued, and who had been following him for an hour and a
half. There was a reasonable possibility the error contributed
to Reis's conviction.
B. There was substantial evidence to support the verdict.
The double jeopardy clause of article I, section 10 of
the Hawai#i Constitution requires that we address Reis's claim of
insufficiency of the evidence before remanding for a new trial
because of trial error. Sheffield, 146 Hawai#i at 61, 456 P.3d
at 134.
We acknowledge that Reis challenges the denial of his
motion in limine to preclude hearsay testimony from Knowles's
girlfriend. She spoke to Knowles on the phone during the
argument at the fast food restaurant. Knowles described the
person he was arguing with; the description matched Reis. Even
without considering that testimony, the evidence was sufficient
to support the verdict.
A person commits the offense of Attempted Murder in the
Second Degree if the person intentionally engages in conduct
which, under the circumstances as the person believes them to be,
is a substantial step to intentionally or knowingly cause the
death of another person. HRS §§ 705-500(1)(b), 707-701.5(1).
State's Exhibit 1 (the surveillance video) shows a person alleged
to be Reis raising his arm and firing what appears to be a pistol
toward Knowles's Lexus. A police officer who had previous
contacts with Reis identified him and his red car as appearing in
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State's Exhibit 1. A witness testified she found an object that
"looked like a casing of some kind" in the middle of Waterhouse
Street the evening of the incident, and reported it to the
police. An HPD evidence specialist recovered the bullet casing
where the incident occurred. An HPD criminalist identified
gunshot residue found on Knowles's Lexus. This evidence, and the
reasonable inferences that could be drawn from it, considered in
the strongest light for the prosecution, was sufficient to
support the verdict.
V. CONCLUSION
The jury was erroneously instructed that use of deadly
force in self-defense must be "immediately necessary." There was
a reasonable possibility the error contributed to Reis's
conviction. The evidence and the reasonable inferences that
could be drawn from it, considered in the strongest light for the
prosecution, was sufficient to support the verdict. The
August 29, 2019 Judgment of Conviction and Sentence is vacated,
and this case is remanded for a new trial.
On the briefs: /s/ Katherine G. Leonard Dwight C.H. Lum, Acting Chief Judge for Defendant-Appellant. /s/ Keith K. Hiraoka Robert T. Nakatsuji, Associate Judge Deputy Prosecuting Attorney, City and County of Honolulu, /s/ Clyde J. Wadsworth for Plaintiff-Appellee. Associate Judge