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State v. Deleon

Supreme Court of Hawaii

September 7, 2018

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
PHILLIP DEJESUS DELEON, Petitioner/Defendant-Appellant.


          William H. Jameson, Jr. for petitioner

          Sonja P. McCullen for respondent



          RECKTENWALD, C.J.

         Defendant Phillip DeLeon was charged with, inter alia, Murder in the Second Degree of Shawn Powell. The charges stemmed from a late-night confrontation between DeLeon and a group of men that included Powell and Jermaine Beaudoin, which resulted in DeLeon fatally shooting Powell in the chest. In support of DeLeon's claim of self-defense, DeLeon sought to introduce evidence of Powell's and Beaudoin's prior violent acts under Hawai'i Rules of Evidence (HRE) Rules 404 and 405, to show their violent or aggressive character. Hawai'i law permits defendants to introduce evidence of victims' prior violent acts for that purpose, but only if there is a factual dispute as to whether the defendant or the victim was the first aggressor. See State v. Lui, 61 Haw. 328, 329, 603 P.2d 151, 154 (1979). The circuit court denied DeLeon's request after finding that there was no factual dispute that DeLeon was the first aggressor, and DeLeon was convicted of Powell's murder. The Intermediate Court of Appeals (ICA) affirmed, and DeLeon now seeks certiorari review.

         As an initial matter, we hold that a victim's violent or aggressive character is an "essential element" of a self-defense claim for purposes of determining admissibility under HRE Rule 405. Accordingly, specific instances of conduct, such as a victim's prior violent acts, can be used as a method of proving character in such circumstances under HRE Rule 405.

         We further hold that the circuit court erred in finding no factual dispute as to who was the first aggressor. We also conclude that the error was not harmless. Accordingly, we vacate the ICA's December 13, 2017 Judgment on Appeal and the circuit court's August 5, 2015 Judgment, and remand the case for further proceedings.

         I. Background

         A. Prior Proceedings

         On August 5, 2009, the State indicted DeLeon for eight charges, including: Attempted Murder in the First Degree (Count I), in violation of Hawai'i Revised Statutes (HRS) §§ 705-500, 707-701(1)(a), and 706-656; Murder in the Second Degree (Count II), in violation of HRS §§ 707-701.5 and 706-656; Attempted Murder in the Second Degree (Count III), in violation of HRS §§ 705-500, 707-701.5, and 706-656; Carrying or Use of Firearm in the Commission of a Separate Felony (Counts IV and V), in violation of HRS §§ 134-21, 705-500, 707-701.5, and 706-656; Place to Keep Pistol or Revolver (Count VI), in violation of HRS § 134-25; Reckless Endangering in the First Degree (Count VII), in violation of HRS § 707-713; and Ownership or Possession Prohibited of Any Firearm or Ammunition By a Person Indicted for Certain Crimes (Count VIII), in violation of HRS §§ 134-7(b) and (h). The Grand Jury identified the following people as victims: Shawn Powell in Counts I and II, Justin Gamboa in Counts I and III, Jermaine Beaudoin in Count VII, and Lane Akiona in Count VII.

         On October 1, 2010, a jury found DeLeon not guilty of Count I, guilty of Count Ill's lesser-included offense of Reckless Endangering in the First Degree, and guilty as charged of all other counts. On appeal, the ICA vacated the Count V conviction and affirmed the remaining convictions. On certiorari review, this court vacated the circuit court's judgment of conviction and sentence on Counts II and IV only, [1] and remanded the case to the circuit court for further proceedings on those counts. State v. DeLeon, 131 Hawai'i 463, 486, 489, 319 P.3d 382, 405, 408 (2014). Accordingly, Counts II and IV are the only charges at issue in this appeal.[2]

B. Instant Circuit Court Proceedings

         Prior to his re-trial, DeLeon filed an "Amended Notice of Intent to Rely on Hawai'i Rules of Evidence, Rule 404 (b) Evidence," which sought to introduce evidence of Powell's and Beaudoin's prior bad acts to support DeLeon's position that Powell and Beaudoin were the first aggressors. DeLeon specifically sought to introduce evidence that Powell had struck prosecution witness Joseph Chang "while Chang was attempting to physically separate [Powell] and a Reynold Borges" in 2007, and also that Powell was convicted of two counts of Assault in the Third Degree on June 13, 2000. The motion also sought to introduce Powell's January 31, 1994 Disorderly Conduct and November 15, 1995 Criminal Property Damage convictions. DeLeon sought to introduce evidence that Beaudoin was convicted of Assault in the Third Degree on October 29, 1998, Assault in the Second Degree on August 8, 2000, and was arrested for two counts of Assault in the Third Degree on January 12, 2003.

         Trial commenced on April 7, 2015.[3]

         1. Essential Testimony from the State's Case-in-Chief

         a. Beaudoin's Testimony

         Beaudoin testified that on July 31, 2009, after a night of drinking at various bars, he, Powell, and Justin Gamboa arrived at Bar Seven at around 2:00 a.m. Later in the night at Bar Seven, Beaudoin saw Powell and DeLeon "having a confrontation." Beaudoin described Powell and DeLeon as "holding each other behind the head, and with their heads stuck to each other, arguing." Beaudoin testified that he then walked over to Powell and DeLeon to stop them, saying "stop it, relax, cool down." Beaudoin testified that DeLeon swore at him, at which point Beaudoin slapped DeLeon. Beaudoin further testified that the bouncers came in at that point and escorted DeLeon out of the bar.

         Beaudoin testified that he, Powell, and Gamboa stayed at Bar Seven until around 3:30 a.m., at which point they went to another bar called Seoul Karaoke, which is adjacent to a restaurant called Sorabol. They entered Seoul Karaoke but were told that it was closing, so they left. As Beaudoin, Powell, and Gamboa were walking back to their vehicle in the parking lot, they heard someone yelling at them. When they started approaching that person, they recognized him, later identified as DeLeon, as the person from Bar Seven with whom Powell and Beaudoin had a confrontation. According to Beaudoin, he, Powell, and Gamboa told DeLeon, "[n]o, everything is cool." As the three continued to approach DeLeon, DeLeon opened the trunk of his vehicle, pulled out a gun, and immediately started shooting at them. Beaudoin testified that one of the shots hit Powell in the chest, causing Powell to fall to the ground beside Beaudoin. Beaudoin then "went on the ground and tried to get away. And that's when [DeLeon] started shooting towards [Beaudoin and Gamboa]." DeLeon then drove away in his vehicle.

         On cross-examination, Beaudoin testified that in two separate interviews with a detective on July 31, 2009, and at a prior proceeding on August 5, 2009, Beaudoin did not mention that DeLeon was yelling at him, Powell, and Gamboa before they approached DeLeon in the Sorabol parking lot.

         b. Chang's Testimony

         Joseph Chang testified that he was with a group of friends that included Powell and Beaudoin at Bar Seven, but was not with them at the time of the shooting at the Sorabol parking lot. On cross-examination, Chang testified that Beaudoin came up to him at Bar Seven and told him that he wanted to hit DeLeon. Chang testified that shortly thereafter he heard a loud slap, and when he turned, he saw DeLeon's sunglasses "flying off." Chang also testified that on a separate occasion in 2007, he tried to break up an altercation between Powell and another individual, which resulted in Powell striking Chang in the face.[4]

         c. Akiona's Testimony

         Lane Akiona testified that he arrived with Joe Chang at Bar Seven at around 2:00 a.m. Akiona joined Powell, Beaudoin, and Gamboa at Seoul Karaoke after leaving Bar Seven. Akiona testified that they were inside Seoul Karaoke for less than ten minutes, and once they left and were in the parking lot, he heard someone yelling. Akiona testified that he saw DeLeon pull out a gun, and when he "felt the pop" of DeLeon's gun discharging, Akiona "crawled on the ground" and "tried to get out of the way."

         d. Gamboa's Testimony

         Gamboa testified that after being told that Seoul Karaoke was closing, he, Powell, Beaudoin, and Akiona were all walking together in the parking lot towards their vehicle to leave. According to Gamboa, they heard somebody yelling, "[y]ou guys wanna mess with me?' or'[y]ou guys wanna hit me?'" DeLeon then fired three shots into the ground, and seconds later Gamboa saw Powell approaching DeLeon with "both hands up out to the side, slightly above shoulder height." Gamboa testified that DeLeon shot Powell immediately after the first three shots were fired when Powell had his hands up.

         A surveillance video of the Sorabol parking lot at the time of the shooting was played for the jury at trial during Gamboa's direct examination.

         On cross-examination, Gamboa testified that in an interview with a detective on July 31, 2009, he did not mention that DeLeon was yelling at him, Powell, and Beaudoin before they approached DeLeon in the Sorabol parking lot.

         e. Dr. Goodhue's Testimony

         Forensic pathologist Dr. William Goodhue testified that he performed an autopsy on Powell, and that Powell sustained a single fatal gunshot wound to his heart, causing his death. Dr. Goodhue also testified that Powell had 0.171 grams per deciliter of alcohol in his blood, and that what appeared to be gunshot residue on Powell's shirt was consistent with being shot from 6 to 8 inches away.

         2. Essential Testimony from Defense's Case-in-Chief

         DeLeon testified that on the evening of July 30, 2009, he went "club hopping" and at around 2:30 to 3:00 a.m., he was at a bar called Bar Seven. At Bar Seven, he saw an acquaintance, Chang, who introduced him to Powell. As DeLeon and Powell shook hands, DeLeon heard Powell say something that included the word "Mexican." DeLeon testified that he leaned forward to understand what Powell was saying, heard Powell say "fucking Mexican[, ]" and was grabbed from behind the neck by Powell and put in a chokehold. As DeLeon was struggling to break away from Powell's grip, DeLeon was hit on the side of his head by Beaudoin, causing the sunglasses he was wearing to fall to the floor. DeLeon testified that Chang then intervened, and told DeLeon to leave "before something worse happens to [DeLeon] because they have all their friends here."

         DeLeon testified that he left in his vehicle and was heading home, but decided to go to another bar called Ocean's to see if his friends were there. Once at Ocean's, he saw "[i]t was already closing down[, ]" because the parking lot was empty, and decided to go to a restaurant called Sorabol "to get something to eat." DeLeon parked in the Sorabol parking lot, then exited and locked his vehicle. As he started walking towards Sorabol, he heard someone behind him say, "[t]here's that fucking Mexican." DeLeon turned to see a group of four to five men walking towards him, and recognized that they were the same men from the Bar Seven incident earlier that night. DeLeon considered running to Sorabol, but didn't think he could make it and thus headed back to his vehicle. When the group of men were five to ten feet away from DeLeon, DeLeon "decided to pop [his] trunk with the fob on [his] key chain" and "pulled the 9-millimeter out."

         DeLeon testified that he "just wanted to scare them" and "to protect [him]self." After giving a verbal warning to stay back and firing a warning shot in the air, two men ran away but the other three were still proceeding in DeLeon's direction. DeLeon then told them again to stay back and fired three shots into the ground, but the men still did not stop approaching.[5] DeLeon had his gun pointed at Powell, who was closest to him and about an "arm's length" away. According to DeLeon, Powell then said, with his hands up, "[w]hat, you think one gun is going to stop us all?" DeLeon explained that he then shot Powell, and that he only intended to hit him in the shoulder. DeLeon testified that he shot Powell because he was scared and wanted to protect himself, and also that he did not intend to kill Powell. DeLeon admitted on cross-examination that Powell's hands were raised and he was unarmed when DeLeon shot him. DeLeon testified that Powell was "at arm's length" from DeLeon when he shot him, and Powell did not try to take the gun away from DeLeon, although Powell was close enough to do so.

         3. DeLeon's Request to Introduce Powell's and Beaudoin's Prior Violent Acts

         After the defense presented its case, the circuit court conducted a hearing outside of the jury's presence on DeLeon's "Amended Notice of Intent to Rely on Hawai'i Rules of Evidence, Rule 404(b) Evidence." The defense sought to introduce evidence of Powell's and Beaudoin's prior violent acts in order to support the defense's position that Powell and Beaudoin, and not DeLeon, were the first aggressors.

         After hearing arguments from the parties, the circuit court denied DeLeon's request.[6] The circuit court acknowledged that it had reviewed State v. Lui, 61 Haw. 328, 603 P.2d 151 (1979), State v. Basque, 66 Haw. 510, 666 P.2d 599 (1983), and State v. Maddox, 116 Hawai'i 445, ...

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