CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-12-0000007; CR. NO. 09-1-0719.
Randall K. Hironaka, for petitioner.
Stephen K. Tsushima, for respondent.
NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
[132 Hawai'i 452] POLLACK, J.
This case raises the question of whether the trial court erred in failing to instruct the jury upon the offense of assault in the first degree as an included offense of the charge of murder in the second degree.
The circuit court in this case declined to instruct the jury on the defense's requested instruction on assault in the first degree. The jury returned a verdict of manslaughter, and the Intermediate Court of Appeals (ICA) affirmed the circuit court's judgment.
We conclude that assault in the first degree is an included offense of murder in the second degree, and the circuit erred by not instructing the jury upon the included offense of assault in the first degree. Accordingly, we vacate the ICA's and circuit court's judgments, and remand for a new trial.
Paul Kaeo (Paul) was charged with murder in the second degree pursuant to Hawai'i Revised Statutes (HRS) § 707-701.5 (1993). The following facts were adduced at trial.
Paul met his future wife Debbie Baker Kaeo (Debbie) in 1989. They were married on June 6, 1998. Around the end of 2008, Debbie and Paul moved into the home of Debbie's mother, Lucille Baker (Lucille), where they lived together with Lucille and Debbie's brother, Calvin Baker (Calvin), until February 2009. In February 2009, Paul learned that Debbie was seeing Charles Kahumoku (Charles) and Debbie moved out. Debbie testified that she moved in with [132 Hawai'i 453] Charles. At that time, Debbie was working for Roberts Hawai'i as a bus driver.
Despite their separation, Debbie and Paul continued to communicate from February to May 2009, usually after Debbie and Charles got into arguments. On direct examination, Debbie testified that Paul would get upset during these conversations and threaten to kill Charles. On cross-examination, however, Debbie stated only that she " assum[ed]" Paul had once threatened to kill Charles during these conversations and that she could not remember mentioning Paul's threats against Charles to anyone. Debbie also testified that she could not remember Paul ever asking where Charles lived.
Calvin also stated that Paul had said he would kill Charles " if he found him." On cross-examination Calvin stated that he never told his sister about Paul's threats. Calvin also confirmed that it was possible Paul actually said " he don't know what might happen" if Paul ever saw Charles, and not that he would kill Charles.
Paul denied ever telling Calvin that he would kill Charles. Paul admitted saying to Calvin that Paul " never like see [Charles] because I don't know what might happen." Paul testified that he still loved Debbie and would take her back if she wanted him back. Paul acknowledged that he did not like Charles after he found out Charles was sleeping with Debbie.
Paul testified that Debbie complained to him about Charles' drinking, mood swings, and his over protectiveness of her. Debbie and Paul testified that sometime around the end of March or beginning of April 2009, Debbie called Paul " for advice" because Charlie had threatened to shoot her. Paul testified that it sounded as if " [Debbie] was in the room, and [Charles] was locked out, and I could hear him, like, pounding on the door and saying that he going kill her if she leave him." Paul stated that Debbie asked him at that time to pick her up, but he was at the beach with Calvin, had no car, and Calvin would not lend him his car.
Paul testified that after Debbie called him, he left a message on Charles' phone asking " why [Charles] hitting on [Debbie][?]" Charles called Paul back, and Paul told him " he gotta stop, stop hitting her or for sure she's gonna leave him." Paul told Charles he could hear him threaten to kill Debbie. At that point, according to Paul, Charles started yelling and swearing at him and Charles said " you know what, I see you on the street, I'll shoot you too." Paul testified that he then hung up the phone because he was scared.
Paul testified that another incident of Charles abusing Debbie occurred a few weeks later in the middle of April. Debbie admitted that this incident occurred at a bar near the airport where Debbie and Charles were having drinks with friends. Debbie testified that she did not understand why Charles became angry during this incident. However, Paul testified that Debbie said to him that " she started talking to this guy at the bar and [Charles] got jealous." Debbie testified that after Charles got upset she went to the women's bathroom. Charles followed her into the bathroom and then hit her in the back. Another person in the bathroom came out of a stall and told Charles to stop and get out. Debbie testified that she got scared and called Paul.
Paul testified that he was at work on a night shift that lasted from 10 p.m. to 6 a.m. when Debbie called and told him what had occurred. Paul told her to come over to his workplace. Debbie testified that she ran over to Paul's workplace, which was near the bar, because she did not want to get hit again and was afraid she would.
Paul testified that when Debbie arrived, he had to open a gate at his workplace to let her in. At that point, Debbie and Paul saw Charles driving by Paul's workplace in a truck. Paul testified that Debbie stayed at his workplace for a couple hours while he worked and then she left. Paul testified that when Debbie left, she went back to the bar to meet Charles.
Paul testified further that he saw Debbie again the next day at Lucille's house. According to Paul, Debbie said " she hate when Charlie do this kind of stuff when - because he always do 'em when he drunk." Paul testified that Debbie then pulled down the collar of her turtleneck and showed him " a bruise like someone choked her." The bruise [132 Hawai'i 454] was not present when Paul saw her the night before. Paul told Debbie " you gotta do something about it because my hands are tied if you no like be with me[.]" Debbie denied that she went to her mother's house at this time or that these events occurred.
Despite these incidents, Debbie testified that while her relationship with Charles was not perfect, she was happy with him. She also stated that it was not " a hard choice choosing between Paul and Charles[.]" Debbie testified also that Paul never attempted to reconcile his relationship with her or tried to persuade her to get back into a relationship with him.
Paul, Calvin, and Debbie all testified that on May 8, 2009, Paul and Calvin were at Lucille's house preparing for a family party or baby shower that was scheduled to take place the next day. Lucille was in California at this time. Paul testified that at approximately 9 a.m., Debbie called him and offered to come to the house and help with the cooking. Paul testified that he told Debbie to stay at home.
Debbie testified that on that day Charles picked her up after work and dropped her off at Lucille's around 4:30 p.m. Calvin testified that Paul was in the house and did not speak to Charles at this time. Paul testified that because he was almost done with the cooking he, Debbie, and Calvin just " [hung] out" outside the house in the garage/driveway. Calvin testified they drank beer. Debbie confirmed that they spent the evening drinking beer and " talking stories" outside of the house in the garage/driveway.
Paul and Calvin testified that during the evening Debbie's relationship with Charles was discussed. Paul testified that Debbie said she was scared of Charles and " don't like when he's always mad at her." Paul and Calvin testified that they attempted to convince Debbie to stay over at the house for the night. Debbie said she would not mind, but she did not have a work uniform for the next day. Paul informed her she had an extra work uniform inside.
Debbie testified that Paul and Calvin brought up the issue of her relationship with Charles. Debbie testified that Paul and Calvin tried to convince her to stay over but that she " just wanted to go home." Debbie testified that Paul said she looked " scared" and that Paul knew " he threatening you," to which Debbie replied, " what you talking about? I no understand."
At this point, Paul and Calvin testified that they thought Debbie was going to stay over. Paul wanted Debbie to stay over because he " cannot see her getting beat - beaten every time." Calvin also testified that he spoke on the phone with Charles and told him that Debbie was going to stay over. Calvin testified that Debbie did not want to go home or go with Charles.
Debbie and Paul testified that at some point in the evening, Debbie left the house to get pupus but forgot her cellular phone at the house. Paul testified that while Debbie was gone, Charles called her phone. Paul answered the phone and said " lose the number" and then hung up. Charles called back a few minutes later and Paul answered again. This time Paul explained that Debbie was going to stay over for the night and Calvin would drive her to work and pick her up. Paul testified that at this point Charles " started swearing and stuff like that and he told me that don't interfere with my life, I going kill you." That made Paul scared for himself and Debbie. Paul testified that he was scared for Debbie because " if she do go home, who knows what he might do. I don't know what he's capable of."
Debbie testified that when she returned she noticed that she had a missed call. Paul told Debbie that Charles had called. Debbie did not think it was a " big deal." Debbie then went into the house. Debbie called Charles and asked him to pick her up. Debbie wanted to go home at about 9:30 p.m. because she had work the next day.
Paul testified that at about 9:00 p.m. or 9:30 p.m. Charles arrived at Lucille's house in his truck. Paul testified that he did not know Charles was coming. Calvin also testified that he did not know Charles was coming and was surprised when he showed up.
[132 Hawai'i 455] Paul testified that Debbie stood up to leave and he pushed her back down. Debbie testified that she stood up, hugged both Calvin and Paul goodbye, " was ready to walk out the gate," and then was " flown back" onto the grass behind the garage by Paul. Calvin testified that Debbie never stood up. Paul testified that he said to Debbie " you're not going home with this guy tonight." According to Debbie, Paul said " 'You ain't' - 'you ain't fucking leaving.'"
Paul testified that the reason he pushed Debbie down was because something might happen to her. Paul testified further that, as a result of the conversation he had with Charles about Debbie staying over and Charles threatening to kill Paul, Charles might be mad and drunk enough to kill Debbie and thus he " feared for her life."
Paul testified that he next walked into the street toward Charles' truck. Paul told Charles " [Debbie] going stay over I told you, you know, just go home and pick her up at work." Paul testified that Charles started " yelling and stuff like that," but Paul could not hear him because Charles was in the truck. Paul grabbed a " pipe,"  which Calvin described as the rebar they used to keep the gate closed so as to keep the dogs in the yard and " started smashing on [Charles'] car." Paul smashed the windshield first, then the passenger side window. Debbie testified that she attempted to grab the bar out of Paul's hand but Paul shoved her down again. Paul testified that he pushed Debbie down and told her to stay away. He also testified that he was not jealous and the attack was " like trying to keep her safe, protect - protecting her." Paul testified that he " never like . . . something happen to her" " [b]ecause [Charles] was hurting Debbie."
Calvin testified that he could not understand anything Paul was saying. Debbie testified that while Paul was smashing Charles' car, Paul said " he going kill him" " many times." Debbie noticed that Charles looked scared and was not attempting to get out of the car. After hitting Charles' car a number of times, Paul testified that he " went onto the driver's side and started jabbing [Charles]." Debbie testified that as Paul walked around the truck to the driver's side, Paul said " I going kill him." Debbie testified that during this time she was " screaming and yelling" " stop, just stop." Debbie testified that she called the police three times while she was trying to stop Paul from hurting Charles.
On cross-examination, Debbie acknowledged that she did not mention Paul saying he would kill Charles while Paul was hitting Charles' car in her written statement or in her half-hour interview with the detectives, and she did not remember telling this to the grand jury. Debbie testified that she told the prosecuting attorney in the case about what Paul said on at least one occasion.
Paul testified that he jabbed Charles through the open driver side window. Paul stated that he never opened the door while he was jabbing Charles with the bar. Calvin testified that he saw Paul " poking" Charles with the bar while Charles was inside the truck. Paul testified that at this point he was only trying to hurt Charles and not kill him:
[DEFENSE COUNSEL]: Okay. When you were jabbing into there, what were you trying to do, Paul?
[PAUL]: I was trying to hurt him.
[132 Hawai'i 456] [DEFENSE COUNSEL]: Okay. But, I mean, why?
[PAUL]: Because he was hurting Debbie.
[DEFENSE COUNSEL]: Okay. You said earlier you pushed down Debbie because you were afraid for her?
[PAUL]: Yes, I was afraid for her.
[DEFENSE COUNSEL]: Okay. When you're jabbing the bar into the truck, you still afraid for her?
[DEFENSE COUNSEL]: Okay. Were you trying to kill him?
[DEFENSE COUNSEL]: You weren't trying to kill him?
[Defense Counsel]: Okay. What were you trying to do, Paul, I mean, what --
[PAUL]: I was just trying to stop him from, you know, taking her and, who knows, beating her, stuff like that.
[DEFENSE COUNSEL]: Did you, I guess, at any time think about the kind of injuries that ...