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    STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Dean Victor MATUU, Petitioner/Defendant-Appellant.
    SCWC-16-0000571
    Supreme Court of Hawai'i.
    JUNE 28, 2019
    Jon N. Ikenaga for petitioner
    Stephen K. Tsushima, Honolulu, for respondent
   RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

On April 29, 2016, a jury convicted Petitioner/Defendant-Appellant Dean Victor Matuu ("Matuu"), who had been indicted on charges of Murder in the Second Degree in violation of Hawai'i Revised Statutes ("HRS") §§ 701.5 and 706-656 (2014), of the lesser included offense of Assault in the First Degree, HRS § 707-710 (2014), for stabbing his cousin Frank Kapesi ("Frank") on January 25, 2015 at a home Matuu and Frank shared with other family members.

This appeal arises from Matuu's challenge that his conviction was not supported by substantial evidence and that the circuit court's jury instructions were prejudicially erroneous or misleading. The ICA affirmed the Circuit Court of the First Circuit's ("circuit court['s]") Judgment of Conviction and Sentence, concluding in relevant part that there was substantial evidence to support the jury's verdict and that the jury instructions, when viewed as a whole, were not prejudicially insufficient, erroneous, inconsistent, or misleading. See State v. Matuu, No. CAAP-16-571, 2017 WL 4339427 (App. Sep. 29, 2017) (SDO).

For the following reasons, the ICA correctly concluded that Matuu's conviction on the lesser included offense of Assault in the First Degree was supported by substantial evidence and that the circuit court's jury instructions, as a whole, were not prejudicially erroneous or misleading. However, the basis upon which the ICA had concluded "the [circuit] court sufficiently instructed the jury regarding unanimity" and that therefore "[t]he additional unanimity instruction requested by Matuu was unnecessary," Matuu, SDO at 10-11, is erroneous. The general unanimity instruction as to the elements, cited to by the ICA, did not include the requirement that the prosecution negative justification defenses as an element of the offense. Nevertheless, the circuit court's justification instructions and the general "unanimous verdict" instruction did require for a conviction jury unanimity that the prosecution meet its burden of proving beyond a reasonable doubt that it negatived Matuu's justification defenses. The justification instruction made clear that the prosecution had the burden of disproving the self-defense and defense-of-other defenses beyond a reasonable doubt, and the general unanimous verdict instruction made clear that the verdict had to be unanimous, which would include the prosecution's burden to negative the defenses beyond a reasonable doubt.

Accordingly, although the ICA erred in concluding that the elements instruction addressed the unanimity required to disprove the justification defenses, the instructions as a whole were not insufficient, erroneous, inconsistent, or misleading. We therefore affirm the ICA's Judgment on Appeal that affirms the circuit court's Judgment of Conviction and Sentence. The requirement of unanimity beyond a reasonable doubt as to the negativing defenses element would have been much clearer to the jury if the justification defense instructions had specifically included the unanimity requirement. We therefore provide guidance that circuit courts should do so in the future.

II. Background

A. Factual Background

From 2013 when Matuu was seventeen years old, he shared a home with his cousins, Frank and Kapesi Kapesi, and two uncles. Matuu and Frank shared a living space, which was separated by a chest of drawers, television set, other furniture, and a tarp.

Frank was often "high" on drugs. Additionally, he had been belligerent with other family members in the past. Testimony regarding three instances between 2013 and 2014 of Frank's belligerent behavior were provided at trial.

First, during a family party in 2013 while Kapesi was dancing to music, Frank punched Kapesi in the face for "no reason," requiring family members to take Kapesi to a hospital for stitches. The incident caused Matuu, who was still in high school at the time, to fear Frank as he "kn[e]w for sure that [Frank] [could] do that to anybody and to me, too."

Second, in November 2014, Frank directly accosted Matuu after Matuu returned from playing basketball, telling Matuu, "I going beat you up." Nothing came of the incident as Matuu, who did not know why Frank was mad, told Frank he did not want to fight and then returned to the park.

Third, in December 2014, after hearing a sudden "crashing in front of the garage" as if "something broke," Matuu came out of his room and saw one of his uncles get up from the sidewalk as Frank walked away. The incident scared Matuu.

In the afternoon of January 23, 2015, when Matuu returned home around three or four o'clock, it was apparent to Matuu that Frank was high on drugs. Later, without interacting with Frank, Matuu helped an uncle's girlfriend prepare a meal in a slow cooker. Matuu then returned to his room.

Around six in the evening after drinking one or two shots of Ciroc with Kapesi, Matuu went to a friend's house down the road and smoked some marijuana. Matuu returned home around four or five in the morning on January 24, 2015.

Upon returning home, Matuu went to the kitchen to scoop food out of the slow cooker. According to Matuu, as he was doing so, Frank accosted him:

[T]hat's when all of a sudden Mr. Frank Kapesi ... approached me over here, and I seen him with my side -- my side vision, and he came to me, and he was like, "Oh, you fucka. Why you gotta come and eat all the food? Why you gotta eat the food for?" I was looking at him. "Bro, I'm not eating all the food. There's still food in there. I made this food. I helped somebody make this food." But, no, he got angry at me. I don't even know what I did to him, but he got mad. After I was making the food, he was still approaching me. "Fucka, I telling you why you gotta eat all the food?"

Matuu then retreated to his room, but Frank followed him and kept yelling at him. According to Matuu,

he was telling me, "Oh, you don't hear me, you fucka?" I was telling him, "Bro, I'm not even -- I'm not even trying to argue with you." I'm just trying to make my food. I was feeling good, buzzing, and I wanted to have a good time because I just came from a friend's house. And after that, he was still yelling at me. "Oh, you fucka. Fuck you. I going beat you up and I'll put you in the hospital." And after that, I was like, "Bro." Then I came around. Came around, put my plate on the stool, came around and I stand right here. And I was telling him -- I was trying to tell him nicely, trying to calm him down, trying to kiss ass because I know he can hurt me, or he can beat me up. I was telling him, "Bro, why you gotta - why you gotta yell at me? Why you gotta -- why you gotta say this kind of stuff to me?" But, no, he didn't --he wasn't even calm down. He was already mad at me.

Matuu was "scared" during the verbal confrontation. Matuu surmised that Frank must have seen that Matuu was fearful and began punching Matuu. At first, Matuu blocked Frank's punches; ultimately Matuu grabbed and wrestled with Frank. While they wrestled, Matuu thought that Frank "was gonna beat me up because he was telling me he was going to put me in the hospital." Matuu also "was hoping that [Frank] wouldn't get mad," but Frank nevertheless "was getting mad" while they wrestled.

Kapesi, who had heard Matuu and Frank argue about the food, came out of his room when he heard something break. When Kapesi found them wrestling on top of each other near Frank's bed, he "jumped in ... to break them apart." According to Kapesi, Frank grabbed Kapesi, slammed him to the ground where he lost his breath, and was on top of, but did not punch, Kapesi.

In the meantime, Matuu was "scared" when Frank had slammed Kapesi to the ground. According to Matuu, Frank was punching Kapesi. Matuu thought that Frank would come after him when Frank was "done with" Kapesi, and therefore Matuu needed to "protect[ ] himself." Thus, when Matuu had "br[oken] free" while Frank was on top of Kapesi, he went to the kitchen and grabbed a steak knife.

According to Matuu, when he came back from the kitchen, Frank was still on Kapesi, so Matuu stabbed Frank once "on the side" to "stop him" because he knew Frank was strong and violent. After stabbing Frank, Matuu said to Frank: "I told you, bro. I told you to stop, but you was pushing me, and you was bothering me, and you was telling me you was going beat me up and put me in the hospital."

However, according to Kapesi, after he got his wind back, he stood between Matuu and Frank and yelled, "Stop already. Enough." Kapesi saw Matuu return "fast" from the kitchen area. Kapesi then put his hand up to stop Matuu from swinging at Frank and received a cut on his hand. Kapesi was in shock, tended to his cut for about thirty seconds, and the "next thing [he] knew, Frank was on the ground" gasping for air.

An autopsy of Frank's body showed multiple blunt force injuries, four stab wounds of the torso, and two incised wounds, i.e., wounds that are longer on the surface of the skin than they are deep. A knife blade was found within a wound track that perforated the left lung and the pulmonary artery. Another knife blade was found at the scene near Frank's body, although Matuu testified that he recalled grabbing only one knife. A toxicology report showed that methamphetamine and amphetamine were present in Frank's blood.

B. Procedural Background

Opening statements were made on April 26, 2016, and trial continued on April 28 and 29, 2016. After closing arguments, the jury was instructed in relevant part to "consider all of the instructions as a whole and consider each instruction in light of all of the others"; to "presume the defendant is innocent of the charge against him" as "the prosecution has the duty of proving every material element of the offense charged against the defendant beyond a reasonable doubt"; and that "[i]n order for the prosecution to prove an element, all twelve jurors must unanimously agree that the same act has been proved beyond a reasonable doubt."

The jury was then instructed on the "material elements" of Murder in the Second Degree and all of its included offenses, "each of which the prosecution must prove beyond a reasonable doubt." The circuit court further instructed that "[s]elf-defense is a defense to the charge of Murder in the Second Degree and all of its included offenses." Specifically:

Self-defense involves consideration of two issues. First, you must determine whether the defendant did or did not use "deadly force." Second, you must determine whether the force used was justified. The burden is on the prosecution to prove beyond a reasonable doubt that the force used by the defendant was not justified. If the prosecution does not meet its burden, then you must find the defendant not guilty.
....
If you determine that the defendant used "deadly force," then you are to proceed to the section in this instruction entitled "Deadly Force Used." If you determine that the defendant did not use "deadly force," then you are to proceed to the section in this instruction entitled "Deadly Force Not Used." You must then follow the law in the applicable section to determine the second issue, which is whether the force used by the defendant was justified.

(Emphasis added.) The circuit court similarly instructed that "[d]efense[-]of[-]others is a defense to the charge of Murder in the Second Degree and all of its included offenses," and gave similar instructions regarding the "issues" the jury was to consider. The circuit court also instructed that "[a] verdict must represent the considered judgment of each juror, and in order to reach a verdict, it is necessary that each juror agree thereto. In other words, your verdict must be unanimous."

Matuu's proposed self-defense instruction, which was rejected by the circuit court, differed in relevant part from the circuit court's given instruction, as it had proposed to clearly instruct the jury that its determination as to whether the defendant used "deadly force" be unanimous by adding the following underlined language:

If you unanimously determine beyond a reasonable doubt that the defendant used "deadly force," then you are to proceed to the section in this instruction entitled "Deadly Force Used." If you determine that the defendant did not use "deadly force," or are unable to reach unanimous agreement on this issue, then you are to proceed to the section in this instruction entitled "Deadly Force Not Used." You must then follow the law in the applicable section to determine the second issue, which is whether the force used by the defendant was justified.

On April 29, 2016, a jury convicted Matuu of the lesser included offense of Assault in the First Degree, a violation of HRS § 707-710. He was sentenced to five years of incarceration as a young adult defendant and ordered to pay restitution and fees.

C. Appeal to the ICA

Matuu timely filed a Notice of Appeal to the ICA, and presented two points of error:

A. There was no substantial evidence to support Matuu's conviction where the State did not prove beyond a reasonable doubt facts negating his justification defenses.
B. Matuu's conviction must be vacated where the Circuit Court's instruction on the use of deadly force in self-protection was prejudicially erroneous and misleading.

On the first issue, Matuu argued that the evidence at trial established that Matuu subjectively believed that his use of force was necessary in self-defense and that such belief was objectively reasonable. Matuu pointed to the fact that Frank abused drugs often and did so on the night in question, exhibited volatile behavior, and in three prior instances, Frank behaved belligerently or violently toward either Matuu or another family member. Additionally, because Matuu had seen Frank punch Kapesi in the past, "Matuu reasonably believed that Kapesi would have been justified in using deadly force to protect himself from Frank's attack" when Frank had slammed Kapesi to the ground, thereby supporting Matuu's defense-of-others justification.

On the second issue, Matuu asserted that the circuit court's self-defense instruction, which omitted Matuu's proposed language regarding unanimity and the prosecution's "beyond a reasonable doubt" burden of proof, was erroneous because "the jury may not have unanimously determined beyond a reasonable doubt that Matuu had used 'deadly force' .... The erroneous instructions were not harmless as the jury could have then rejected self-defense because it found that Matuu could have used 'force' in self-defense, but not 'deadly force.' "

The ICA rejected the challenges. As to the first issue, the ICA identified substantial evidence in the record showing that even if Matuu subjectively believed that his use of force was necessary in self-defense, that belief was not reasonable because evidence showed that Frank was stabbed multiple times with two knives, and such force was not necessary for self-defense when Frank was unarmed. See Matuu, SDO at 6.

As to the second issue, the ICA noted that the instruction for assault in the first degree necessitated a finding that Matuu had used "deadly force." Additionally, as jury instructions are to be considered as a whole, see Matuu, SDO at 10 (citing Samson v. Nahulu, 136 Hawai'i 415, 425, 363 P.3d 263, 273 (2015) ), the ICA concluded the jury instructions included appropriate unanimity instructions. For example, the ICA observed that the jury was explicitly instructed that "in order to convict, the jury must unanimously agree to each element of the crime beyond a reasonable doubt," and that " '[t]he burden is on the prosecution to prove beyond a reasonable doubt that the force used by the defendant was not justified. If the prosecution does not meet its burden, then you must find the defendant not guilty.' " Matuu, SDO at 11. According to the ICA, the jury was also given a general unanimity instruction. See Matuu, SDO at 10. Accordingly, the ICA concluded that Matuu's instruction using additional unanimity language was not necessary. See id.

Now on appeal to this court, Matuu reasserts the same questions he had posed to the ICA:

1. Whether the ICA gravely erred in holding that there was substantial evidence to support Matuu's conviction where the State failed to prove beyond a reasonable doubt facts negating his justification defenses?
2. Whether the ICA gravely erred in holding that the Circuit Court's jury instruction on the use of deadly force in self-protection [and defense-of-others] was prejudicially erroneous and misleading?

For the following reasons, although the ICA erred in concluding that the elements instruction addressed the unanimity required to disprove the justification defenses, the instructions as a whole were not insufficient, erroneous, inconsistent, or misleading. We therefore affirm the ICA's Judgment on Appeal that affirms the circuit court's Judgment of Conviction and Sentence, and provide the following guidance regarding the inclusion of the unanimity requirement for the negativing defenses element.

III. Standards of Review

A. Jury Instructions

The standard of review for a trial court's issuance or refusal of a jury instruction is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. 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. In other words, error is not to be viewed in isolation and considered purely in the abstract.

State v. Kassebeer, 118 Hawai'i 493, 504, 193 P.3d 409, 420 (2008) (internal quotation marks, citations, and brackets omitted) (quoting State v. Mainaaupo, 117 Hawai'i 235, 247, 178 P.3d 1, 13 (2008) ).

B. Sufficiency of the Evidence

The appellate court reviews the sufficiency of evidence on appeal as follows:

[E]vidence 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 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.

State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998) (quoting State v. Quitog, 85 Hawai'i 128, 145, 938 P.2d 559, 576 (1997) ). " 'Substantial evidence' as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. (internal quotation marks and citation omitted).

IV. Discussion

We proceed by examining Matuu's second question regarding jury instructions before proceeding to discuss the first question regarding substantial evidence.

A. The ICA Correctly Concluded That the Jury Instructions, When Viewed as a Whole, Were Not Prejudicially Erroneous or Misleading, Although It Erred by Concluding the Instruction Requiring Unanimity in Finding the Elements Included the Justification Defenses

1. Matuu's specific concern that the jury may not have unanimously agreed that he used "deadly force" lacks basis.

At trial, in relevant part, the parties agreed to the following instruction regarding Assault in the First Degree proposed by the court:

If and only if you find the defendant, Dean Victor Matuu, not guilty of Manslaughter, or you are unable to reach a unanimous verdict as to this offense, then you must consider whether the defendant is guilty or not guilty of the included offense of Assault in the First Degree.
A person commits the offense of Assault in the First Degree if he intentionally or knowingly causes serious bodily injury to another person.
There are two material elements of the offense of Assault in the First Degree, each of which the prosecution must prove beyond a reasonable doubt.
These two elements are:
1. That on or about January 24, 2015, in the City and County of Honolulu, State of Hawaii, the Defendant caused serious bodily injury to Frank Kapesi; and
2. That the Defendant did so intentionally or knowingly.
"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.

(Emphasis added.)

With respect to the justification of self-protection, the circuit court's proposed instruction began:

Self-defense is a defense to the charge of Murder in the Second Degree and all of its included offenses .... Self-defense involves consideration of two issues. First, you must determine whether the defendant did or did not use "deadly force." Second, you must determine whether the force used was justified. If the prosecution does not meet its burden, then you must find the defendant not guilty.
The first issue is: Did the defendant use "deadly force?"
"Deadly Force" means force which the defendant uses with the intent of causing, or which he knows to create a substantial risk of causing[ ] death or serious bodily injury.
"Force" means any bodily impact, restraint, or confinement, or the threat thereof.
"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.

Matuu then proposed to add the following underlined language to the relevant remaining portion of the court's proposed instruction:

If you unanimously determine beyond a reasonable doubt that the defendant used "deadly force," then you are to proceed to the section in this instruction entitled "Deadly Force Used." If you determine that the defendant did not use "deadly force," or are unable to reach unanimous agreement on this issue, then you are to proceed to the section in this instruction entitled "Deadly Force Not Used."

The circuit court refused Defendant's proposed instruction.

Matuu contends that without the underlined language, e.g., "unanimous[ly]" or "beyond a reasonable doubt," when the jury proceeded through its instructions regarding self-protection, it may not have unanimously determined beyond a reasonable doubt that the defendant had used deadly force. Matuu asserts that as a consequence, the jury may have therefore inappropriately limited the scope of justifiable acts only to those necessary to protect against death or seriously bodily injury; had the jury instead been unable to unanimously agree beyond a reasonable doubt that deadly force had been used, then the range of justifiable acts would include those necessary to protect against any "unlawful force."

This argument lacks merit. The ICA correctly noted that the jury was first instructed on the elements of first degree assault, which were required to be proven by the prosecution beyond a reasonable doubt. See Matuu, SDO at 9. Specifically, the jury was required to find beyond a reasonable doubt that (1) "Defendant caused serious bodily injury to Frank Kapesi," and (2) "[t]hat the Defendant did so intentionally or knowingly." As "deadly force" means "force which the defendant uses with the intent of causing, or which he knows to create a substantial risk of causing, death or serious bodily injury," the elements of first degree assault inherently require a finding that "deadly force" was used by Matuu. Additionally, the jury was further instructed that the finding as to assault in the first degree must be unanimous. Thus, that the jury found Matuu guilty of assault in the first degree necessarily means the jury unanimously found beyond a reasonable doubt that Matuu had used "deadly force." Accordingly, Matuu's specific concern that the jury may not have unanimously agreed that he used "deadly force" lacks basis.

2. The ICA erred in relying on the circuit court's general unanimity instruction in its analysis.

We next take a closer examination of the justification instructions given the nature of Matuu's issue on appeal, whether the justification instructions' lack of an express unanimity requirement rendered the jury instructions, when viewed as a whole, prejudicially insufficient, erroneous, inconsistent, or misleading, and whether it affirmatively appears from the record as a whole that the error was not prejudicial. See Kassebeer, 118 Hawai'i at 504, 193 P.3d at 420.

As provided in HRS § 702-205(b) (2014), the negativing of certain defenses is an element of an offense:

Elements of an offense. The elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as:
(a) Are specified by the definition of the offense, and
(b) Negative a defense (other than a defense based on the statute of limitations, lack of venue, or lack of jurisdiction).

HRS § 702-205. Thus, the State was required to prove beyond a reasonable doubt that Matuu's self-defense or defense-of-others justification was "negative[d]." Id.; see HRS § 701-114 (2014) ("[N]o person may be convicted of an offense unless the following are proved beyond a reasonable doubt ... [e]ach element of the offense ....").

The circuit court's general unanimity instruction stated that "[i]n order for the prosecution to prove an element, all twelve jurors must unanimously agree that the same act has been proved beyond a reasonable doubt." In addition, the circuit court instructed the jury that "[t]he burden is on the prosecution to prove beyond a reasonable doubt that the force used by the defendant was not justified."

However, the general unanimity instruction required only that all jurors unanimously agree that the same act be proven beyond a reasonable doubt with respect to an "element" of an offense. Although negativing Matuu's justification defenses is, as a matter of law, an element of Assault in the First Degree, see HRS § 702-205(b), the circuit court did not include the justifications of self-defense or defense-of-others as an "element" of Assault in the First Degree. The circuit court also did not include in the justifications instructions the requirement that jurors must unanimously conclude the prosecution had disproven the defenses beyond a reasonable doubt. Thus, it may not have been readily apparent to the jurors that the general unanimity instruction regarding the "elements" of an offense applied to the prosecution's negativing of Matuu's self-defense and defense-of-others justifications.

The ICA did not observe that the unanimity instruction given by the circuit court applied only to "elements" identified by the circuit court, and therefore did not clearly apply to the negativing of Matuu's justification defenses. To the extent the ICA's SDO stated that the circuit court's unanimity instruction applied to the justification instructions, we now clarify the ICA decision.

The circuit court's instructional error, however, was not prejudicial. In explaining why the jury instructions, when viewed as a whole, were not prejudicially insufficient erroneous, inconsistent, or misleading, the ICA correctly noted:

In addition, "[j]ury instructions ... must be considered as a whole. Moreover, a refusal to give an instruction that correctly states the law is not in error if another expressing a substantially similar principle is given." Here, the court sufficiently instructed the jury regarding unanimity. The court first stated that in order to convict, the jury must unanimously agree to each element of the crime beyond a reasonable doubt.[ ] Then the court gave a general unanimity instruction.[ ] In addition, in the instruction for self-defense, the court instructed the jury that "[t]he burden is on the prosecution to prove beyond a reasonable doubt that the force used by the defendant was not justified. If the prosecution does not meet its burden, then you must find the defendant not guilty." The additional unanimity instruction requested by Matuu was unnecessary.

Matuu, SDO at 10-11. As previously discussed, the circuit court had instructed: "The burden is on the prosecution to prove beyond a reasonable doubt that the force used by the defendant was not justified. If the prosecution does not meet its burden, then you must find the defendant not guilty." The circuit court had also instructed the jury that "[a] verdict must represent the considered judgment of each juror, and in order to reach a verdict, it is necessary that each juror agree thereto. In other words, your verdict must be unanimous."

When these instructions are read together, a juror, who does not find the State to have met its burden of proving beyond a reasonable doubt that Matuu's use of deadly force was not justified, "must find the defendant not guilty." Because "juries are presumed to ... follow all of the trial court's instructions," State v. Knight, 80 Hawai'i 318, 327, 909 P.2d 1133, 1142 (1996) (quoting Sato v. Tawata, 79 Hawai'i 14, 21, 897 P.2d 941, 948 (1995) ), each of the jurors must have unanimously determined that the State met its burden of proving beyond a reasonable doubt that Matuu's use of deadly force was not justified. As such, based on the record as a whole, the circuit court's instructions were not "prejudicially insufficient, erroneous, inconsistent, or misleading." See Kassebeer, 118 Hawai'i at 504, 193 P.3d at 420.

Thus, although the ICA did not refer to the "unanimous verdict" instruction, it correctly concluded that the jury instructions, when viewed as a whole, were not prejudicially insufficient, erroneous, inconsistent, or misleading. See Matuu, SDO at 11.

The unanimity requirement as to negativing the defenses would have been much clearer to the jury, however, if it was specifically included in the instructions regarding the State's burden to negative the justification defenses. We therefore provide guidance that the circuit courts should follow this practice.

B. Substantial Evidence Supports the Negativing of Matuu's Justifications of Self-defense and Defense-of-others

Matuu also argues that there was insufficient evidence to negative the defenses of self-defense and defense-of-others. This argument also lacks merit.

Once evidence of justification has been adduced, the prosecution has the burden of disproving it beyond a reasonable doubt. See State v. Culkin, 97 Hawai'i 206, 215, 35 P.3d 233, 242 (2001) (citing HRS §§ 702-205(b), 703-301(1) (1993); State v. Lubong, 77 Hawai'i 429, 431, 886 P.2d 766, 768 (App. 1994) ). The test for assessing a defendant's self-protection justification pursuant to HRS § 703-304 (2014) involves two prongs because HRS § 703-300 (2014) defines "believes" as "reasonably believes":

The first prong is subjective; it requires a determination of whether the defendant had the requisite belief that deadly force was necessary to avert death, serious bodily injury, kidnapping, rape, or forcible sodomy.
....
If the State does not prove beyond a reasonable doubt that the defendant did not have the requisite belief that deadly force was necessary, the factfinder must then proceed to the second prong of the test. This prong is objective; it requires a determination of whether a reasonably prudent person in the same situation as the defendant would have believed that deadly force was necessary for self-protection.

Culkin, 97 Hawai'i at 215, 35 P.3d at 242 (quoting Lubong, 77 Hawai'i at 433, 886 P.2d at 770 ). On appeal, Matuu argues that substantial evidence does not exist to support the requisite findings under either prong.

As the ICA discussed, even assuming Matuu had the requisite belief that his use of force was necessary (prong 1), there was substantial evidence in the record to support a finding that a reasonably prudent person in the same situation as Matuu would not have believed that the force exercised by Matuu was immediately necessary for self-protection (prong 2). See Matuu, SDO at 6. For example, Matuu testified that he was able to "break free" when Kapesi intervened. Accordingly, a person of reasonable caution could conclude that upon "break[ing] free," it was not reasonable for Matuu to then go to the kitchen, obtain a knife, and return to stab Frank, who was unarmed. Additionally, although Matuu testified he recalled grabbing only one knife and stabbing Frank once, the autopsy report showed Frank was stabbed multiple times and two bloodied knife blades were recovered - one lodged in a wound track in Frank's chest and another on the floor near Frank's body. As noted by the ICA, a person of reasonable caution could conclude "that it was [not] necessary [for Matuu] to stab Frank in the torso multiple times to protect himself against death or serious injury." Matuu, SDO at 7.

A similar two-prong subjective/objective approach is necessary to analyze a defense-of-others justification pursuant to HRS § 703-305 (2014). As to prong 1, or the subjective inquiry, "[t]he commentary to HRS § 703-305 states that this section 'permits a person to use force to protect another person when [ (a) ] the actor believes the other person would have been justified in using force to protect himself and [ (b) ] he believes that his intervention is necessary to protect the other person.' " State v. Mark, 123 Hawai'i 205, 220, 231 P.3d 478, 493 (2010) (emphasis in original) (footnote omitted). Prong 2, or the objective inquiry, is necessary because, as noted previously, "believes" means "reasonably believes." HRS § 703-300.

The ICA's analysis of whether sufficient evidence was presented to negative Matuu's defense-of-others justification focused solely on prong 1(a). It first states that the jury may have simply believed Kapesi's testimony over Matuu's. Thus, with respect to prong 1(a), the jury could have concluded that "although Frank slammed Kapesi to the ground, Frank did not hit Kapesi and Kapesi had regained his wind and was on his feet trying to keep Frank and Matuu apart when Frank was stabbed." Matuu, SDO at 7. Accordingly, "the jury was well within its province to conclude that the evidence proved beyond a reasonable doubt that Kapesi would not have been justified in stabbing Frank under these circumstances." Matuu, SDO at 7-8. In other words, a person of reasonable caution could have relied on Kapesi's testimony (and disbelieved Matuu's testimony) that Frank did not punch Kapesi when Kapesi intervened in the January 24, 2015 altercation, and therefore conclude that Matuu did not have the requisite subjective belief that Kapesi would have been justified in stabbing Frank.

Similarly, with respect to prong 1(b), substantial evidence supports the conclusion that Matuu did not actually "believe that [his] intervention [wa]s necessary for the protection" of Kapesi. See HRS § 703-305(b). For example, as stated previously, a person of reasonable caution could have concluded that Frank did not punch Kapesi after Kapesi attempted to separate Frank and Matuu, and therefore Matuu did not believe it was necessary for him to intervene.

A person of reasonable caution could also have concluded that even if Frank had punched Kapesi on January 24, 2015, Matuu was nevertheless unconcerned with Kapesi's well-being. At trial, Matuu testified that because he was "scared" Frank would target him after Frank was "done with" Kapesi, he needed to "protect[ ] himself" by grabbing a knife from the kitchen. However, Matuu also testified that after stabbing Frank, Matuu said to Frank: "I told you, bro. I told you to stop, but you was pushing me, and you was bothering me, and you was telling me you was going beat me up and put me in the hospital." Because Matuu said nothing about Frank punching Kapesi, and nothing in Matuu's testimony showed he was otherwise concerned with Kapesi's well-being, a person of reasonable caution could have concluded that Matuu was not concerned about Kapesi, and therefore conclude that Matuu did not believe that he needed to use force against Frank to protect Kapesi.

Yet, even if it were assumed that both parts of prong 1 were satisfied - that Matuu had the requisite subjective belief that (a) Kapesi would have been justified in using force to protect himself against Frank, and (b) Matuu's intervention was necessary to protect Kapesi - there was sufficient evidence to support a jury's finding as to Prong 2, i.e., that Matuu's belief was not "reasonable."

Evidence shows that Kapesi was not afraid of Frank despite being punched by him on a previous occasion and requiring stitches; Kapesi voluntarily came out of his room to stop Frank and Matuu's fight even though Frank was "high on drugs"; and the only injury Kapesi appeared to have suffered from the incident was a stab wound to the hand caused by Matuu. Thus, a person of reasonable caution could have concluded that Kapesi would not have been justified in stabbing Frank multiple times to protect himself against Frank's punches, or that Matuu's intervention was necessary to protect Kapesi, and therefore, any subjective belief Matuu may have had was not reasonable.

V. Conclusion

For the foregoing reasons, we affirm the ICA's November 17, 2017 Judgment on Appeal entered pursuant to its SDO. The ICA correctly concluded that Matuu's conviction was supported by substantial evidence and that the circuit court's jury instructions were not prejudicially erroneous or misleading. However, we provide guidance that the requirement for unanimity should specifically be included in justification instructions.

      The Honorable Glenn J. Kim presided.

      Although Frank was referred to as "Uncle Frank" by Kapesi, testimony showed that Frank was Matuu's cousin.

      Ciroc is a brand of vodka.

      Matuu had requested a self-defense instruction. "[A] defendant is entitled to a requested jury instruction on a defense when he presents some evidence going to the defense." State v. Taylor, 130 Hawai'i 196, 207, 307 P.3d 1142, 1153 (2013) (citing State v. Stenger, 122 Hawai'i 271, 226 P.3d 441 (2010) ).

      Matuu did not propose a defense-of-others instruction. The circuit court, however, correctly gave an instruction on this justification defense. See Taylor, 130 Hawai'i at 207, 307 P.3d at 1153 (holding that if a defendant does not request a defense instruction, a circuit court's failure to instruct on such a defense where there is evidence of the defense upon which a reasonable juror could harbor a reasonable doubt as to the defendant's guilt, will be reviewed for plain error).

      "Assault in the first degree. (1) A person commits the offense of assault in the first degree if the person intentionally or knowingly causes serious bodily injury to another person. ..." HRS § 707-710 (2014).

      The full text is available on page 144 Hawai'i at 559, 445 P.3d at 100, infra.

      "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."

      "The use of force upon or toward another person is justified if the defendant reasonably believes that force is immediately necessary to protect himself on the present occasion against the use of unlawful force by the other person."

      Although this court has held that a defendant was not prejudiced when the defenses of self and others were not included in the elements instructions of the charged crime, see State v. Augustin, 101 Hawai'i 127, 63 P.3d 1097 (2002), as this court has stated, the right embodied in Hawai'i Rules of Penal Procedure ("HRPP") Rule 31(a) requiring that a verdict be unanimous is a substantial one. See State v. Arceo, 84 Hawai'i 1, 33, 928 P.2d 843, 875 (1996). To the extent the ICA's SDO suggests that a specific unanimity instruction is not needed for justifications such as self-defense and defense-of-others warrants further examination, as this court has provided only limited circumstances in which a specific unanimity instruction is not required. See, e.g., State v. Rapoza, 95 Hawai'i 321, 22 P.3d 968 (2001) (concluding that a specific unanimity instruction was not required "if the conduct element of an offense is proved by the prosecution to have been a series of acts constituting a continuous course of conduct and the offense is statutorily defined in such a manner as to not preclude it from being a 'continuous offense' ").

      It is not entirely clear to which specific instruction the ICA refers. The "presumption of innocence/reasonable doubt" instruction does not include unanimity language.

      Presumably, the "general unanimity instruction" refers to the instruction patterned on Instruction No. 8.02 of the Hawai'i Pattern Jury Instructions. The circuit court's instruction stated:
      The law allows the introduction of evidence for the purpose of showing that there is more than one act upon which proof of an element of an offense may be based. In order for the prosecution to prove an element, all twelve jurors must unanimously agree that the same act has been proved beyond a reasonable doubt.

      This appears to explain in lay terms to the jury that the prosecution's burden of negativing Matuu's self-defense justification is indeed an "element." However, it does not imply that the general unanimity instruction applies to the self-defense instruction, as the ICA appears to have suggested.

      Use of force in self-protection. (1) Subject to the provisions of this section and of section 703-308, 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.
      ....
      HRS § 703-304.

      Use of force for the protection of other persons. (1) Subject to the provisions of this section and of section 703-310, the 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.
      ....
      HRS § 703-305.


text:
    STATE of Hawai'i, Respondent/Plaintiff-Appellant, v. James WELDON, also known as James William Weldon, Petitioner/Defendant-Appellee.
    SCWC-14-0001042
    Supreme Court of Hawai'i.
    JUNE 28, 2019
    Alan J.T. Komagome, Jon N. Ikenaga, and Phyllis J. Hironaka, Honolulu, for petitioner/defendant-appellee
    Brian R. Vincent for respondent/plaintiff-appellant
   RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY NAKAYAMA, J.

Article I, section 7 of the Hawai'i Constitution ensures that "[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated[.]" This right is guaranteed to every person, without regard to the wealth of the individual or the place and time at which the individual is stopped. In this case, we reaffirm these fundamental principles and conclude that evidence discovered when the police illegally stopped and seized Petitioner/Defendant-Appellee James Weldon (Weldon) is inadmissible at trial.

In the early morning of June 4, 2013, Weldon was approached by Honolulu Police Department (HPD) police officers while he was lying down on a concrete slab adjacent to an apartment complex on Waikîkî beach. Several police officers approached him intending to address whether certain items (namely, charcoal embers, cooked meat, and empty beer bottles) in the vicinity belonged to him. When an officer asked Weldon to provide his identification, he provided a Veterans Affairs (VA) medical card to the officer.

After Weldon handed the medical card to the police officer, the officer noticed that Weldon was grasping something in his backpack, and ordered Weldon to take his hand out of the backpack. Weldon refused. A second officer then pulled the bag from Weldon. As the officer pulled the bag away, an eight-inch collapsible baton fell out of the backpack. Weldon grabbed the baton and pulled it up to the right side of his head as if to brandish it. The police officers eventually wrested control of the baton away from Weldon and arrested him. Respondent/Plaintiff-Appellant State of Hawai'i (the State) later charged Weldon with one count of carrying a deadly weapon in violation of Hawai'i Revised Statutes (HRS) § 134-51(a).

The Circuit Court of the First Circuit (circuit court) granted Weldon's motion to suppress evidence of the baton. The State appealed, and the Intermediate Court of Appeals (ICA) vacated the circuit court's order granting Weldon's motion to suppress, concluding that the seizure was incident to a valid weapons search. Weldon filed an application for writ of certiorari.

We reverse the ICA's judgment on appeal. On the facts of this case, the police lacked reasonable suspicion to seize Weldon while he was lying next to the beach in Waikîkî. Accordingly, the police violated Weldon's constitutional rights by approaching him, asking for identification, and seizing his backpack. Evidence from this unconstitutional search and seizure must be suppressed.

I. BACKGROUND

A. Circuit Court Proceedings

On November 4, 2013, the State charged Weldon via an amended complaint with one count of carrying a deadly weapon in violation of HRS § 134-51(a).

On April 21, 2014, Weldon filed a Motion to Suppress Evidence (Motion to Suppress), and argued that the circuit court should suppress evidence and statements obtained from the warrantless search and seizure of Weldon. He argued that the police officers violated his constitutional rights under the United States Constitution and under article I, section 7 of the Hawai'i Constitution. Weldon contended that prior to being detained and questioned by the police officers, Weldon "was not engaged in any overt violation of any criminal law." Weldon stated that under our case law, "[p]olice may not randomly 'encounter' individuals without an objective basis for suspecting them of misconduct and then place them in a coercive environment in order to develop reasonable suspicion to justify their detention." Thus, Weldon concluded that "it was only by virtue of the unlawful conduct of the police officers that the alleged deadly weapon became visible to the police officers," and "[a]ccordingly, all evidence seized subsequent to the detention and questioning of Mr. Weldon was tainted ... and must be suppressed as fruits of the unlawful seizure."

In its memorandum in opposition to Weldon's Motion to Suppress, the State argued that the police officers "had a reasonable suspicion that criminal activity was afoot." Specifically, the State contended:

The articulable facts in support of the Officers' belief stop [sic] include, but are not limited to, the observation of the alcoholic beverage containers, the charcoal residue of an extinguished fire, and discarded cooked meat that were in close proximity to the Defendant. If the Defendant had the alcoholic beverages and extinguished fire on the beach/beach access these would be in violation of the R.O.H. 40-1.2(a) and H.A.R. 13-13-24(4) as indicated supra. Officers also indicated that when they were talking to the Defendant he was sitting on the property break wall of 2801 [C]oconut Avenue. [The officer] confirmed that the Defendant did not live in the condos and could be possibly violating H.R.S. 708-815.[ ] Officers had a reasonable suspicion that criminal activity was afoot and detained the Defendant to investigate but did not have probable cause to arrest the Defendant.

The circuit court held a hearing on Weldon's Motion to Suppress on June 16, 2014. Two HPD police officers, Officer Heyworth and Officer Wilson, testified.

1. Officer Heyworth's Testimony

Officer Heyworth testified that on June 4, 2013, he was assigned to patrol the Waikîkî area. He stated that part of the patrol area included the area around 2801 Coconut Avenue, which was "a particular hot spot, that block." He testified that when he arrived at the address around 7:00 a.m., he noticed "discarded embers from a fire, um, meat, cooked meat strewn everywhere, and, uh, beer bottles. [He] also noticed a male about five to six feet away from them, uh, laying down." He identified the male as Weldon. Officer Heyworth stated that he approached Weldon because he "wanted to address, uh, the items, see, you know, if they were his. So I just went up to him to talk to him." Upon approaching Weldon, Officer Heyworth noticed that Weldon was mumbling, slow to respond, and not necessarily cooperative when he was asked for his name and identification. Weldon eventually went into his backpack and provided him with a VA medical card. By this time, Officer Wilson had also arrived on the scene.

Officer Heyworth explained that after handing over his VA medical card, Weldon continued to grasp something inside the backpack. While Officer Heyworth could not see what he was grasping, he ordered Weldon to remove his hand from the backpack.

When Weldon refused to remove his hand from the backpack, Officer Heyworth stated that Officer Wilson attempted to grab the backpack away, and when he succeeded in pulling the bag away, a collapsible baton fell on the concrete area beside Weldon. Officer Heyworth testified that Weldon picked the baton up "and brought it to the right ear, his right ear, and brandished it in a manner as if to strike me or Officer Wilson." Recognizing the baton as a deadly weapon, Officer Heyworth told Weldon to drop the baton and that he was under arrest.

On cross-examination, defense counsel asked Officer Heyworth why he had visited 2801 Coconut Avenue that morning. Officer Heyworth responded that there were general complaints from residents in the area about a high level of burglaries, so he was "making checks of the area." Officer Heyworth clarified that he was not responding to any specific complaint or call.

Defense counsel then showed Officer Heyworth a photograph of the beach side of 2801 Coconut Avenue and asked him to indicate where he saw Weldon and where he saw the items that led him to further investigate Weldon. Officer Heyworth responded that Weldon may have been lying down towards the right side of the photograph, and that the "discarded embers from a fire" were not in the area depicted by the photograph. He testified that there was no "fire pit or barbecue grill" in the area. He further stated that at the time that he approached Weldon, Weldon was not drinking any beer or alcohol, was not eating any food, and was not using illicit drugs.

Officer Heyworth testified that he approached Weldon to "address his welfare after observing those items." Defense counsel asked, "just to clarify, based on the observations of the beverage containers, the residue of the fire, and the disregarded meat, those were the - I guess the factors that led you to believe that there was some type of criminal activity going on?" Officer Heyworth responded, "I wanted to determine if they were - they were his." When asked whether he had ever questioned Weldon about whether the items were his, Officer Heyworth responded that "[t]he first thing I asked was his name I believe."

2. Officer Wilson's Testimony

Officer Wilson testified that when he arrived at 2801 Coconut Avenue, he initially saw Weldon, "several bottles, uh, a barbecue, and some meat that had been barbecued ... [and] several backpacks." He stated that the glass bottles were empty, and "they appeared to be of the alcoholic type beverage and maybe some soda bottles." Officer Wilson testified that when he arrived on the scene, he initially observed Weldon lying down on the "concrete pad." Officer Wilson stated that "basically we approached, we asked for ID, tried to identify who this is." He explained that "we" referred to Officer Heyworth, himself, and a third officer who arrived shortly after.

When Weldon failed to comply with Officer Heyworth's instruction that he "not go into his bag," Officer Wilson testified that he pulled the bag away from Weldon, and he "immediately recognized in [Weldon's] right hand a collapsible baton." Officer Wilson testified that Weldon "pulled his right hand back with the baton. At that time it extended."

On cross-examination, when shown the same photograph of the area as shown to Officer Heyworth, Officer Wilson indicated that Weldon had been lying down in the middle of the photograph. He also stated that the charcoal type grill and the glass bottles were on Weldon's left, and the backpacks on Weldon's right. When asked why he approached Weldon, Officer Wilson replied, "we were in the area making routine checks identifying people. Uh, we could do it - at that time we were doing it, uh, daily." Officer Wilson also stated that while Weldon was brandishing the baton, he was sitting up, and "[h]is legs were still forward flat on the concrete."

On recross-examination, Officer Wilson testified that while tenants of the apartment building above the concrete wall could access a locked gate that led into the apartment, "you can't, um, stop access to the beach area." Officer Wilson stated that he was not sure whether there were signs on the wall denoting that the area was private property, or stating "keep off this wall." Officer Wilson further testified that no trespass case was created against Weldon.

3. Circuit Court Order Granting Motion to Suppress

During closing arguments, the State and defense counsel disputed whether the officers had reasonable suspicion to believe that Weldon was engaged in criminal activity. The State argued that the officers had individualized suspicion to approach Weldon to investigate possible criminal activity. Defense counsel countered that the officers lacked reasonable suspicion to approach Weldon because "there's nothing in evidence to show that Mr. Weldon is connected in time to these, you know, bottles or grill." Defense counsel also stated that when the officers approached Weldon, they did not inquire whether the items were his, but first asked for his identification. At the conclusion of the hearing, the circuit court orally granted Weldon's Motion to Suppress.

The circuit court entered its written Findings of Fact, Conclusions of Law and Order Granting Defendant's Motion to Suppress Evidence (Order Granting Motion to Suppress) on July 8, 2014. Therein, the circuit court made the following findings of fact and conclusions of law:

1. Police officers may stop and detain an individual if the officers have reasonable suspicion that the person stopped was engaged in criminal conduct.
2. Police officers, in that situation, must be able to point to specific articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
3. In this case, there was reasonable suspicion for the police officers to approach Defendant and investigate based upon the past complaints of criminal activity in the area and the proximity of bottles, cooked meat, and extinguished fire to Defendant.
4. However once detained there was no reasonable suspicion for the police officers to search Defendant's backpack based on the articulable facts and circumstances known at that time.
5. Therefore, Defendant's Motion to Suppress Evidence is granted.

Stated differently, while the circuit court determined that the officers had reasonable suspicion to approach Weldon and inquire as to the items located around him, the circuit court concluded that the officers did not have reasonable suspicion to subsequently search Weldon's backpack.

B. ICA Proceedings

The State filed a notice of appeal. In its opening brief, the State argued that the circuit court erred in suppressing evidence of the baton because "the discovery of the baton was the result of a valid protective weapons search." The State disputed the circuit court's fourth conclusion of law, and noted that it was reasonable for the officers to conduct a weapons search once they saw Weldon "grasping something" in his backpack. The State cited the United States Supreme Court's (Supreme Court) decision in Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court stated:

where nothing in the initial stages of the encounter serves to dispel [a police officer's] reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

Here, the State argued that Officer Wilson testified that "[a]t no time were we trying to search [Weldon's] belongings," and noted that Officer Wilson "simply pulled the bag away from Weldon and 'immediately recognized in [Weldon's] right hand a collapsible baton.' " Once Officer Wilson saw the baton, the State argued that under the totality of the circumstances, he was justified in taking measures to neutralize the threat of harm to himself and to others. (Citing State v. Uddipa, 3 Haw. App. 415, 418, 651 P.2d 507, 510-11 (1982) ). Because the weapons search was reasonable, the State requested that the ICA vacate the circuit court's Order Granting Motion to Suppress.

In his answering brief, Weldon argued that the circuit court did not err in granting his Motion to Suppress. Weldon contended, however, that the baton was correctly suppressed because under the totality of the circumstances, the officers had "no specific and articulable facts indicat[ing] that Weldon had been or was about to be engaged in criminal activity."

Thus, Weldon argued that the circuit court's third conclusion of law stating that the police officers had reasonable suspicion to approach Weldon, was unsupported by the evidence. Weldon noted that in State v. Barnes, 58 Haw. 333, 338, 568 P.2d 1207, 1211 (1977), this court stated:

To justify an investigative stop, short of an arrest based on probable cause, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." [ Terry, 392 U.S. at 21, 88 S.Ct. 1868 ]. The ultimate test in these situations must be whether from these facts, measured by an objective standard, a [person] of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate.

Weldon argued that in this case, "[t]he police had no reasonable suspicion to temporarily detain Weldon because they could point to no specific and articulable facts that Weldon was involved in any criminal activity." Here, although Officer Heyworth claimed that Weldon was "five to six feet" from the cooked meat, the charcoal embers, and the glass bottles, when shown a picture of the beach and foundational wall, he also stated that the discarded charcoal was located outside the immediate area around Weldon. Weldon therefore argued that the officers' suspicions that he was the source of the strewn items were unreasonable. Weldon also stated that according to the officers' testimony, Weldon was lying down, apparently sleeping or resting, not eating or drinking, and "was not doing anything else illegal or suspicious." Therefore, Weldon concluded that "a [person] of reasonable caution would [not] be warranted in believing that Weldon was involved in any criminal activity, so the police's intrusion on him was [not] appropriate, and the circuit court properly suppressed the billy/baton."

On April 25, 2018, the ICA entered a memorandum opinion vacating the circuit court's Order Granting Motion to Suppress. State v. Weldon, No. CAAP-14-0001042, 2018 WL 1940952 (App. Apr. 25, 2018) (mem.). The ICA concluded that (1) the officers had reasonable suspicion to approach Weldon and temporarily detain him for questioning, and (2) once the officers saw Weldon grasp something from his backpack, the officers had a reasonable basis to infer that Weldon was armed and dangerous, and could seize the backpack.

In concluding that the officers had reasonable suspicion to approach Weldon, the ICA noted that the "empty beer bottles, strewn cooked meat, and discarded embers from a fire on the beach ... were in close proximity to Weldon, who was the only person in the vicinity." Because it is a crime to possess an open container of intoxicating liquor on the beach, Revised Ordinances of Honolulu §§ 40-1.2, 10-1.1 (1990), and to knowingly drop, place, or throw litter on any public or private property, HRS § 708-829 (Supp. 2006), the ICA concluded that Weldon's close proximity to these items "provided the police with a reasonable suspicion that criminal activity involving Weldon was afoot." Thus, the ICA also concluded that the officers could momentarily detain Weldon.

In concluding that the officers also had reasonable suspicion to search Weldon's backpack, the ICA first noted that Hawai'i case law allows police officers to conduct protective searches for weapons during an investigative detention if the officers can reasonably infer from the detained person's specific conduct and from attendant circumstances that the person is armed and presently dangerous. (Citing State v. Ortiz, 67 Haw. 181, 185, 683 P.2d 822, 826 (1984) ). When Officer Heyworth saw Weldon grasp something in his backpack, and when Weldon refused to comply with the officers' demands to remove his hand from the backpack, the ICA determined that Officer Wilson's actions in seizing the backpack were justified as a valid protective search for weapons. The ICA thus concluded that the officers' recovery of the baton did not violate Weldon's constitutional rights.

Accordingly, the ICA vacated the Order Granting Motion to Suppress and remanded the case for further proceedings. The ICA entered its judgment on appeal on May 24, 2018.

C. Notice of Weldon's Death

Weldon timely filed an application for writ of certiorari on July 25, 2018. We accepted his application on August 28, 2018 and scheduled the case for oral argument.

On November 2, 2018, the Office of the Public Defender (OPD) notified this court that it believed Weldon had passed away on April 22, 2018. Pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 43(a), OPD requested that it be substituted as the party-in-interest for Weldon. We denied OPD's Motion for Substitution, and ordered OPD to "make reasonable efforts to locate an individual or entity to serve as personal representative for [Weldon]."

After oral argument was held, OPD informed us that, despite its efforts, it could not find a proper personal representative to substitute for Weldon.

II. STANDARD OF REVIEW

A. Motion to Suppress

"An appellate court reviews a ruling on a motion to suppress de novo to determine whether the ruling was 'right' or 'wrong.' " State v. Tominiko, 126 Hawai'i 68, 75, 266 P.3d 1122, 1129 (2011) (quoting State v. Prendergast, 103 Hawai'i 451, 453, 83 P.3d 714, 716 (2004) ).

III. DISCUSSION

Weldon presents one question on certiorari: "[w]hether the ICA gravely erred in holding that the Circuit Court erred in granting Weldon's Motion to Suppress because the police seized Weldon without specific and articulable facts supporting reasonable suspicion to believe he was committing a crime."

As an initial matter, we note that it was after we had accepted Weldon's application for writ of certiorari that OPD informed us that Weldon had passed away. Pursuant to HRAP Rule 43(a), we exercise our discretion to address the important constitutional issues raised on certiorari.

We further conclude that because Weldon was seized without reasonable suspicion that he was engaged in criminal activity, his seizure was illegal. Because Weldon's seizure was illegal, the evidence obtained from that illegal seizure, i.e., the baton, is tainted and inadmissible at trial. This illegally-obtained evidence must therefore be suppressed.

A. HRAP Rule 43(a)

Weldon passed away during the pendency of the State's appeal to the ICA, and this court was notified of his death after we accepted his application for writ of certiorari. We later denied OPD's motion to substitute itself as Weldon's personal representative.

If a party dies "while the proceeding is otherwise pending in a Hawai'i appellate court," HRAP Rule 43(a) permits, by motion, the substitution of a personal representative of the deceased party as a party. If a deceased party has no representative, HRAP Rule 43(a) also provides that "any party may suggest the death on the record, and proceedings shall then be had as that [appellate] court shall direct."

In State v. Makaila, 79 Hawai'i 40, 45, 897 P.2d 967, 972 (1995), we applied HRAP Rule 43(a) and determined that if a criminal defendant dies pending appeal of a conviction, an appellate court, in its discretion, may allow for substitution of a proper party-defendant. We also stated, absent a motion for substitution, that an appellate court may (1) dismiss the appeal as moot, (2) vacate the judgment of conviction and dismiss all related criminal proceedings, or (3) enter any other order as the appellate court deems appropriate pursuant to HRAP Rule 43(a). Id. We therefore vacated our earlier order dismissing the deceased criminal defendant's appeal to allow any party to move to substitute a proper party-defendant. Id. at 46, 897 P.2d at 973.

Here, Weldon was never convicted of the crime for which he was charged. Therefore, the specific facts in Makaila differ from the facts of this case. Nevertheless, HRAP Rule 43(a), which applies to any proceeding pending in a Hawai'i appellate court, remains applicable. According to HRAP Rule 43(a), when a proper party representative is not substituted, we may dismiss an appeal, vacate the ICA's judgment on appeal, or enter any other order we deem appropriate. See Makaila, 79 Hawai'i at 45, 897 P.2d at 972 (citing HRAP Rule 43(a) ). We therefore exercise our discretion to address the important constitutional issues raised on certiorari. See State v. Burrell, 837 N.W.2d 459, 467 (Minn. 2013) (identifying public policy considerations which support the continuation of a deceased criminal defendant's appeal).

B. The police unlawfully seized Weldon, and therefore the evidence from the unlawful seizure must be suppressed.

Pursuant to article I, section 7 of the Hawai'i Constitution, the people have a right to be free from unreasonable searches, seizures, and invasions of privacy. In order to determine whether a person can be lawfully seized without first obtaining a warrant, we analyze the following.

First, we determine whether the person was "seized" within the meaning of the United States and Hawai'i Constitutions. Second, if the person was seized, we determine whether the seizure was lawful, i.e., whether the police could have temporarily detained the individual because "they have a reasonable suspicion based on specific and articulable facts that criminal activity is afoot." Tominiko, 126 Hawai'i at 77, 266 P.3d at 1131. If the seizure was not supported by reasonable suspicion, the seizure was unlawful, and any evidence obtained as a result of the initial seizure is inadmissible at trial.

We conclude here that Weldon was seized without reasonable suspicion that he was engaged in criminal activity. Accordingly, the evidence discovered on the basis of that unlawful seizure must be suppressed.

1. When the police approached Weldon and proceeded to question him, they seized him within the meaning of article I, section 7 of the Hawai'i Constitution.

As a threshold matter, Weldon was "seized" within the meaning of article I, section 7 of the Hawai'i Constitution. This court has stated that:

A person is seized if, given the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave. Whether a reasonable person would feel free to leave is determined under an objective standard that this court reviews de novo. A person is seized for purposes of article I, section 7 of the Hawai'i Constitution, when a police officer approaches that person for the express or implied purpose of investigating him or her for possible criminal violations and begins to ask for information.

Tominiko, 126 Hawai'i at 77, 266 P.3d at 1131 (citations and quotations omitted). We examine whether a person is seized on a case by case basis, keeping in mind that a person is seized "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that [the person] was not free to leave." State v. Quino, 74 Haw. 161, 169, 840 P.2d 358, 362 (1992).

We have previously held that an informal inquiry with a person on the street in which there is no compulsion to cooperate is not a seizure within the meaning of article I, section 7. State v. Tsukiyama, 56 Haw. 8, 13, 525 P.2d 1099, 1103 (1974). However, we have also held that when officers deliberately initiate their encounter with a person for the specific purpose of investigating a crime, and their questioning is "specifically designed to elicit responses that would either vindicate or implicate [the person]," officers have seized the individual within the meaning of article I, section 7. Quino, 74 Haw. at 171-72, 840 P.2d at 363-64. The use of physical force is not necessary to effect a seizure; rather, the test is whether "a reasonable person in [the defendant's] position would not have believed that [the person] was free to ignore the officer's inquiries and walk away." Id. at 173, 840 P.2d at 364.

Here, at 7:00 a.m., Officer Heyworth approached Weldon in the course of a regular patrol and not through any specific complaint. After observing discarded embers from a fire, strewn cooked meat on the sand, and glass bottles, Officer Heyworth approached Weldon, who was lying down at the time, to "see, you know, if [these items] were his." Officer Heyworth, in full police uniform, initiated a conversation and immediately requested identification. By this point, Officer Wilson had also arrived at the scene and had also approached Weldon. A third police officer arrived shortly thereafter.

Based upon the totality of the circumstances, we conclude that a reasonable person in Weldon's position would not feel free to ignore Officer Heyworth's inquiries and walk away. Even if Officer Heyworth never specifically asked Weldon whether the items found in his vicinity were his, this court has previously concluded that under certain circumstances, asking for identification and information can rise to a seizure under article I, section 7 if an officer approaches that person for the express or implied purpose of investigating him for possible criminal violations. See State v. Kearns, 75 Haw. 558, 568, 867 P.2d 903, 908 (1994). Here, the officers admitted that they approached Weldon with the express purpose of investigating him for possible criminal violations.

Additionally, when Officer Heyworth asked Weldon to give his name and to show identification, at least two officers, and likely three, had surrounded him. To a reasonable person in Weldon's position, this "show of authority" would make it difficult for the person to believe that the person was free to ignore the officer's inquiries and walk away.

Finally, there is nothing in the record to indicate that Weldon ever consented to the seizure. Even though Weldon had eventually given his identification to the officers, this court has held that "mere acquiescence to questioning, in and of itself, is insufficient to establish consent to the seizure." Kearns, 75 Haw. at 571, 867 P.2d at 909. Based on the totality of the circumstances, we conclude that Weldon was seized pursuant to article I, section 7 of the Hawai'i Constitution.

2. Weldon's seizure was not supported by reasonable suspicion that he was engaged in criminal activity.

Generally, a seizure without a warrant is presumed invalid unless the State proves that the seizure falls within an exception to the warrant requirement of article I, section 7 of the Hawai'i Constitution. State v. Heapy, 113 Hawai'i 283, 290, 151 P.3d 764, 771 (2007). One such exception is a temporary investigative stop where an officer has "reasonable suspicion" that the person stopped was engaged in criminal conduct. Kearns, 75 Haw. at 569, 867 P.2d at 908.

To justify an investigative stop, short of an arrest based on probable cause, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The ultimate test in these situations must be whether from these facts, measured by an objective standard, a [person] of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate.

Tominiko, 126 Hawai'i at 77-78, 266 P.3d at 1131-32 (emphasis and quotations omitted) (quoting Barnes, 58 Haw. at 338, 568 P.2d at 1211 ). We have additionally stated that officers must have a "particularized and objective" basis for suspecting that the person seized has committed or is about to commit a crime. Id. at 78, 266 P.3d at 1132. In other words, reasonable suspicion must be based on "a suspicion that the particular individual being stopped is engaged in wrongdoing." State v. Uddipa, 3 Haw. App. 415, 418, 651 P.2d 507, 510 (1982) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ).

Weldon argues that the officers here could not have reasonably suspected that he was engaged in criminal activity. He cites this court's decision in Tominiko as analogous to the circumstances in his case.

In Tominiko, a police officer was called to address a large gathering of people seen drinking beer and soda at an intersection. 126 Hawai'i at 70, 266 P.3d at 1124. The group eventually dispersed, and the defendant walked back to his car. Id. The officer trailed the defendant and asked to see his identification, but the defendant mumbled something, kept walking, got into his car, and slowly began to drive away. Id. at 72, 266 P.3d at 1126. The defendant drove seven feet before stopping, which allowed the officer to approach the defendant's car window and observe empty beer bottles in the back of the defendant's car. Id. The defendant was later charged with operating a vehicle under the influence of an intoxicant. Id. at 71, 266 P.3d at 1125. At trial, the officer testified that he did not remember seeing the defendant with a beer bottle in his hand. Id. at 72, 266 P.3d at 1126.

We concluded that on those facts, the police officer did not have reasonable suspicion that the defendant was engaged in criminal activity. Id. at 78, 266 P.3d at 1132. The officer "admitted that he did not recall seeing [the defendant] drinking beer or holding a beer bottle in his hand when he approached the group. Additionally, [the officer] did not see [the defendant] fighting or talking loud." Id.

Just as in Tominiko, the facts of this case demonstrate that the officers did not have reasonable suspicion that Weldon was engaged in criminal activity. The ICA noted that possessing an open container of intoxicating liquor and littering are crimes, and concluded that Weldon's "close proximity to the open beer bottles, strewn cooked meat, and discarded fire embers on the beach constituted specific and articulable facts that provided the police with a reasonable suspicion that criminal activity involving Weldon was afoot." However, nothing in the police officers' testimony reasonably ties Weldon to the items that littered the sand around him. While Officer Heyworth testified that the items were about five to six feet away from Weldon, he also testified that the "discarded embers from a fire" were not in the immediate area around Weldon. When Officer Heyworth approached Weldon, he had been lying down. Weldon was not eating or drinking and was not using drugs at the time that he was approached. The glass bottles around Weldon were empty.

Moreover, there is nothing else to infer that Weldon had at any time used the items in his vicinity, cooked the strewn meat, or drank from the empty glass bottles. Officer Heyworth testified that he did not see any plates or utensils, nor any evidence of unopened beer bottles of the same variety around Weldon. Accordingly, Officer Heyworth could not point to any specific, articulable fact indicating that Weldon was or had been involved in any criminal activity. See Tominiko, 126 Hawai'i at 78, 266 P.3d at 1132.

Furthermore, "the mere act of avoiding confrontation does not create an articulable suspicion [of criminal activity]." Id. at 79, 266 P.3d at 1133. In Tominiko, we concluded that the defendant's actions in response to the officer asking for his identification, i.e., "mumbl[ing] something, walk[ing] to his car, and attempt[ing] to start it," did not raise a reasonable suspicion that he had committed a crime. Id. Here, even if Weldon was slow to respond to Officer Heyworth's request for identification and "mumbled a lot" before eventually providing Officer Heyworth with identification, this conduct similarly does not raise reasonable suspicion that he had committed a crime.

"What facts are 'specific' and 'articulable' so as to justify an investigative stop cannot be explicitly defined." Uddipa, 3 Haw. App. at 418, 651 P.2d at 510. Rather, "the totality of the circumstances - the whole picture - must be taken into account." Id. On the record in this case, the totality of the circumstances indicate that the police officers who stopped Weldon lacked specific and articulable facts to support a reasonable suspicion that he was engaged in criminal activity. Without reasonable suspicion, the officers' seizure of Weldon violated article I, section 7 of the Hawai'i Constitution.

3. The baton was a fruit of an unlawful seizure, and must be suppressed.

We prohibit the use of evidence at trial that comes to light as a result of the exploitation of a previous illegal act of the police. Tominiko, 126 Hawai'i at 81, 266 P.3d at 1135. In determining whether evidence is tainted by such an illegal act, this court has followed the standard laid out in the United States Supreme Court's decision in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) : "[a]dmissibility is determined by ascertaining whether the evidence objected to as being the 'fruit' was discovered or became known by the exploitation of the prior illegality or by other means sufficiently distinguished as to purge the later evidence of the initial taint." Tominiko, 126 Hawai'i at 81, 266 P.3d at 1135 (emphasis omitted) (quoting State v. Fukusaku, 85 Hawai'i 462, 475, 946 P.2d 32, 45 (1997) ). In other words, we ask, "[d]isregarding the prior illegality, would the police nevertheless have discovered the evidence?" State v. Trinque, 140 Hawai'i 269, 281, 400 P.3d 470, 482 (2017).

Here, Weldon's initial seizure was unconstitutional because the police officers did not have reasonable suspicion that Weldon was engaged in criminal activity at the time that he was approached. See Section III.B.2 supra. Therefore, Officer Wilson's subsequent seizure of Weldon's backpack stemmed from Weldon's initial illegal seizure. Put differently, the police would not have discovered the baton if not for Weldon's initial illegal seizure. Tominiko, 126 Hawai'i at 81, 266 P.3d at 1135.

"Evidence obtained after the initial stop is fruit of the poisonous tree because it was discovered by exploiting [the officers'] prior illegal seizure." Id. We conclude that the officers' discovery of the baton is a fruit of the poisonous tree, and therefore cannot be used at trial. The circuit court correctly suppressed that evidence.

IV. CONCLUSION

We conclude that both the circuit court and the ICA erred in determining that the police officers had reasonable suspicion to approach Weldon. The officers could not point to any specific facts indicating that the items found on the beach in Weldon's general vicinity were his. Thus, they did not have reasonable suspicion to believe that Weldon was involved in criminal activity.

Weldon was unconstitutionally seized, and the evidence obtained after the initial seizure must be suppressed because it was discovered by exploiting that seizure. While the circuit court erred in concluding that the officers had reasonable suspicion to approach Weldon, the circuit court nevertheless correctly suppressed evidence of the baton.

We therefore reverse the ICA's May 24, 2018 judgment on appeal and affirm the circuit court's July 8, 2014 Findings of Fact, Conclusions of Law and Order Granting Defendant's Motion to Suppress Evidence. Accordingly, for the reasons stated, the case is dismissed with prejudice.

      The State originally filed a complaint in the District Court of the First Circuit on June 5, 2013. Weldon demanded a jury trial, and the district court committed his case to circuit court on September 11, 2013.

      HRS § 134-51(a) (2011) provides:
      Deadly weapons; prohibitions; penalty. (a) Any person, not authorized by law, who carries concealed upon the person's self or within any vehicle used or occupied by the person or who is found armed with any dirk, dagger, blackjack, slug shot, billy, metal knuckles, pistol, or other deadly or dangerous weapon shall be guilty of a misdemeanor and may be immediately arrested without warrant by any sheriff, police officer, or other officer or person. Any weapon, above enumerated, upon conviction of the one carrying or possessing it under this section, shall be summarily destroyed by the chief of police or sheriff.

      Article I, section 7 of the Hawai'i Constitution provides:
      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted.

      However, a police officer later testified that the beach area where Weldon was lying down was accessible to the public. The officer did not check to determine whether there were signs indicating that the concrete slab or retaining wall where Weldon was lying was private property. He also stated that no trespass case was created against Weldon.

      The Honorable Lono J. Lee presided.

      This appears to contradict Officer Heyworth's testimony, in which he stated that he did not see any physical barbecue grill, but just some remaining embers from a fire.

      Weldon argued that the ICA could affirm the circuit court's Order Granting Motion to Suppress on different grounds than those found by the circuit court. (Citing Strouss v. Simmons, 66 Haw. 32, 40, 657 P.2d 1004, 1010 (1982) ).

      HRAP Rule 43(a) (2010) provides in relevant part:
      (a) Death of a party. If a party dies after the notice of appeal is filed, or while the proceeding is otherwise pending in a Hawai'i appellate court, that court may substitute the personal representative of the deceased party as a party on motion filed by the representative or by any party. The motion shall be served upon the representative in accordance with the provisions of Rule 25. If the deceased party has no representative, any party may suggest the death on the record, and proceedings shall then be had as that court shall direct. ...

      As Justice Stewart once opined, "[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers ...." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (Opinion of Stewart, J.).

      In response to Weldon's application, the State contends that Weldon waived this argument because he failed to challenge the circuit court's specific conclusion that the officers had reasonable suspicion "to approach [Weldon] and investigate." The State notes that Weldon did not file a cross-appeal challenging the circuit court's conclusion.
      However, Weldon specifically argued in his answering brief to the ICA that the circuit court's conclusion on this point was erroneous, he explained in great detail that the officers did not have reasonable suspicion to approach him in the first place, and he noted that the ICA could affirm the circuit court's order on other grounds. Therefore, we reject the State's waiver argument.

      The circuit court therefore erred when it concluded the opposite in its July 8, 2014 Order Granting Motion to Suppress.

      Therefore, we need not decide whether the officers' subsequent seizure of Weldon's backpack would otherwise be legal pursuant to a valid weapons search.