CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-16-0000571; CR. NO. 15-1-0128)
Ikenaga for petitioner
Stephen K. Tsushima for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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.
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 (App. Sep. 29, 2017)
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
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.
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.
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.
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."
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.
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
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.
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.
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?"
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.
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
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.
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
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."
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.
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
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
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
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
. . . .
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.
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."
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.
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.
Appeal to the ICA
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 ...