State v. Maumalanga

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI`I

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STATE OF HAWAI`I, Plaintiff-Appellee, v.

MALAKAI MAUMALANGA, Defendant-Appellant

NO. 20146

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

(CR. NO. 95-1252)

August 11, 1998

WATANABE, ACOBA, AND KIRIMITSU, JJ.

OPINION OF THE COURT BY KIRIMITSU, J.

I. INTRODUCTION

Defendant-Appellant Malakai Maumalanga (Defendant) appeals the First Circuit Court's June 28, 1996 Amended Judgment of Conviction and Probation Sentence.⁽¹⁾ For the reasons set forth below, we affirm.

II. BACKGROUND

On June 8, 1996, Defendant had been working at EM Tours as a porter. Because an alleged anonymous phone call was received by the tour company that it would be robbed that evening, Defendant brought two guns to work with him that day. Apparently, no robbery occurred.

While at work on June 8, 1996, Defendant heard of a possible drive-by shooting at Kanoa Park. Defendant then left work at about 10:00 p.m. to personally drive home two of his friends who were at the park during the drive-by shooting. After dropping off his friends, Defendant went to a gas station to put gas in his car. While at the gas station, Defendant coincidentally saw boys who he suspected were involved in the drive-by shooting.

Defendant alleged that one of the boys at the gas station pulled out a gun and aimed it at Defendant. Because Defendant unsuccessfully attempted to drive away, Defendant allegedly had no choice but to grab his gun and aim it at the boys. Defendant then shot off around four to five rounds from his gun.

Defendant was subsequently arrested and charged with seven counts: Attempted Murder in the First Degree (Count I); Attempted Murder in the Second Degree (Counts II and III); Place to Keep Loaded Firearm (Count IV);⁽²⁾ and Terroristic Threatening in the First Degree (Counts V, VI and VII).

The trial court subsequently granted, in part, Defendant's motion for directed verdict and thereby acquitted Defendant of Counts VI and VII.

At trial, Defendant specifically raised a choice of evils defense to the charge of Place to Keep Loaded Firearm,⁽³⁾ Hawaii Revised Statutes (HRS) зз 134-6(c) and (e) (1993).⁽⁴⁾ Over Defendant's objection, the court instructed the jury on the choice of evils defense as follows:

It is a defense to the offense charged that the defendant's conduct was legally justified. The law recognizes the "choice of evils" defense, also referred to as the "necessity" defense.

The "choice of evils" defense justifies the defendant's conduct if the defendant reasonably believed that compliance with the law would have resulted in greater harm to himself or another than the harm sought to be prevented by the law defining the offense charged.

In order for the "choice of evils" defense to apply, four conditions must be satisfied. First, the defendant must have reasonably believed that there was no legal alternative available to him. Second, the defendant must have reasonably believed that the harm sought to be prevented was imminent or immediate. Third, the defendant's conduct must have been reasonably designed to actually prevent the threat of greater harm. Fourth, the harm sought to be avoided must have been greater than the harm sought to be prevented by the law defining the offense charged.

Accordingly, if the prosecution has not proved beyond a reasonable doubt that the defendant's conduct was not legally justified by the "choice of evils" defense, then you must find the defendant not guilty of Count IV: Place to Keep Loaded Firearm. If the prosecution has done so, then you must find that the "choice of evils" defense does not apply.⁽⁵⁾

(Patterned Hawaii Jury Instruction 7.12) (emphasis added).

Subsequently, the jury acquitted Defendant of Counts I, II, III, and V. The jury found Defendant guilty of Count IV - Place to Keep Loaded Firearm.

An Amended Judgment of Conviction and Probation Sentence was entered on June 28, 1996.⁽⁶⁾ Defendant's Notice of Appeal was untimely, having been filed on September 26, 1996.

III. DISCUSSION

A. Jurisdiction

Preliminarily, there is a question of jurisdiction in this case because Defendant filed his notice of appeal fifty-nine days late, or ninety days after the trial court entered its judgment. Pursuant to Hawaii Rules of Appellate Procedure (HRAP) Rule 4(b), a criminal defendant must file a notice of appeal "within 30 days after the entry of the judgment or order appealed from." However, "[t]his court and the Hawaii Supreme Court have seen fit in criminal cases to relax the deadline for filing a notice of appeal where justice so warrants." State v. Ahlo, 79 Hawaii 385, 392, 903 P.2d 690, 697 (App. 1995) (quotation marks and citations omitted). In light of the above holdings, and based on a review of the circumstances in this case, the interests of justice require us to hold that Defendant's failure to comply with HRAP Rule 4(b) does not preclude his right to appeal. See State v. Knight, 80 Hawaii 318, 323, 909 P.2d 1133, 1139 (1996) (extending jurisdiction despite failure to comply with HRAP Rule 4(b)); Ahlo, 79 Hawaii at 392, 903 P.2d at 697 (doing the same).

B. Jury Instructions

Defendant appeals only his conviction of Place to Keep Loaded Firearm. In that regard, Defendant only challenges the jury's instruction regarding his choice of evils justification defense.

1. Standard of review.

"In reviewing jury instructions, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." State v. Maelega, 80 Hawaii 172, 176, 907 P.2d 758, 762 (1995) (quotation marks and citations omitted).

2. The current status of the choice of evils defense in Hawaii.

HRS з 703-302(1)(a) (1993) provides, in relevant part, as follows:

Choice of evils. (1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that:

(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged[.]

HRS з 703-302(1)(a).⁽⁷⁾ HRS з 703-300 (1993) defines "believes" to mean "reasonably believes."

Because the Hawaii Penal Code (the Code) is derived from the Model Penal Code (MPC), Hse. Stand. Comm. Rep. No. 227, in 1971 House journal, at 784, HRS з 703-302 is nearly identical to Section 3.02 of the MPC.⁽⁸⁾

Prior to the enactment of HRS з 703-302(1)(a), the State of Hawaii (the State) followed the common law defense of "necessity" or choice of evils. State v. Marley, 54 Haw. 450, 471-72, 509 P.2d 1095, 1109 (1973).⁽⁹⁾ Under the common law approach, the choice of evils defense is not applicable in three situations (the Marley test):

(1) Where there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law. . . .

(2) A closely related required element is that the harm to be prevented be imminent. . . .

(3) Thirdly, and most importantly, even assuming arguendo that alternative courses of action were "unavailable" . . . defendants remain unentitled to the defense of "necessity" because their actions were not reasonably designed to actually prevent the threatened greater harm.

Id. at 472, 509 P.2d at 1109 (citations omitted).

Following the enactment of HRS з 703-302, this court in State v. Kealoha, 9 Haw. App. 115, 826 P.2d 884 (1992) believed that "the Marley rationale [was] applicable in the construction of HRS з 703-302(1), (2)." Id. at 118, 826 P.2d at 886. Thus, we essentially adopted the three-part Marley test for purposes of construing HRS з 703-302(1), (2). Id.

Subsequently, in 1996, we reaffirmed our decision in Kealoha and surmised that, pursuant to HRS з 703-302(1)(a),

the necessity or choice of evils justification defense is not applicable when one or both of the following requirements is not satisfied: (1) the defendant reasonably believed that it was necessary to commit the crime to avoid an imminent harm or evil to himself or to others; or (2) the harm or evil sought to be avoided was greater than the harm or evil generated by the crime committed.

State v. DeCastro, 81 Hawaii 147, 153, 913 P.2d 558, 564 (App. 1996) (Acoba, J., concurring).

We further reiterated our holding in Kealoha that,

with respect to requirement (1) above, a person does not reasonably believe that it is necessary to commit a crime to avoid an imminent harm or evil to himself or others when one or more of the following is a fact:

(a) A third alternative that did not involve the commission of a crime was reasonably available to the person;

(b) The crime committed was not reasonably designed to actually avoid the harm or evil sought to be avoided; or

Id. at 153-54, 913 P.2d at 564-65.

However, in DeCastro, Judge Acoba disagreed with the application of the three-part Marley test because in his opinion, "the common law requirements set forth in Kealoha [and Marley] conflict with the express language of HRS з 703-302." Id. at 155, 913 P.2d at 566. Instead, pursuant to the express language of HRS з 703-302(1)(a), Judge Acoba reasoned that

the justification defense is satisfied when the following factors are established: the defendant (1) reasonably believes (2) the conduct is necessary (3) to avoid harm or evil to the actor or another which is (4) imminent, and (5) the harm or evil sought to be avoided is greater than the violative conduct.

Id.

Defendant now asks us to revisit our holdings in Kealoha and DeCastro on the basis that these cases improperly expand or add to the requirements set forth by the legislature in HRS з 703-302(1)(a).

3. We reaffirm our holdings in Kealoha and DeCastro with clarification.

Our decisions in Kealoha and DeCastro are consistent with the general principles of statutory construction as well as the Code's rule of construction. Therefore, we reject any argument that Kealoha and DeCastro go beyond the scope of permissible construction.

HRS з 701-102(2) (1993) provides that "[t]he provisions of this Code govern the construction of and punishment for any offense set forth herein committed after the effective date, as well as the construction and application of any defense to a prosecution for such an offense."

HRS з 701-104 (1993) further provides as follows:

Principles of construction. The provisions of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of the words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.

(Emphasis added.) Thus, HRS з 701-104, "read in conjunction with з 701-103 [(purposes of this Code)], is intended to assure that this Code will be construed by the courts in such a way as to effectuate the declared purposes of the law." Commentary to HRS з 701-104.

We are also guided by the following principles of statutory construction:

The starting point in statutory construction is to determine the legislative intent from the language of the statute itself. It is a cardinal rule of statutory construction that courts are bound to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute. Penal statutes are to be strictly construed. However, the strict construction rule does not permit the court to ignore legislative intent, nor require the court to reject that construction that best harmonizes with the design of the statute or the end sought to be achieved.

State v. Mitsuda, 86 Hawaii 37, 40-41, 947 P.2d 349, 352-53 (1997) (emphasis added) (citation omitted).

Based on the aforementioned principles, we make the following observations. In light of our holdings in Kealoha and DeCastro, the law in Hawaii on a choice of evils justification defense is still governed by HRS з 703-302(1)(a): (1) the defendant must reasonably believe that it was necessary to commit the crime to avoid an imminent harm or evil to himself or others; and (2) the harm or evil sought to be avoided was greater than the harm or evil generated by the crime committed. HRS з 703-302(1)(a); see also DeCastro, 81 Hawaii at 153, 913 P.2d at 564.

The language of HRS з 703-302 was intended to be general and objective in order for a jury or factfinder to be the ultimate decision-maker for determining whether a choice of evils

defense is justified. The commentary to з 703-302 states, in relevant part:

The whole matter, with all of its ramifications is to be weighed by the court and the jury in the same manner as in any criminal proceeding. If the defendant's conduct was not necessary, if one evil was not greater than the other, if the defendant exceeded the reasonable bounds of intelligence and morality, the defendant may be convicted for the defendant's conduct notwithstanding the defendant's attempts to justify the defendant's actions.

Finally, many commentators have had difficulty with the concept of necessity because of the possibility of unforeseeable changes in the perilous situation. For instance, if a number of passengers are thrown overboard from a ship to save a much larger number of persons, there is really no way for the actors to foresee the exact moment when a rescue ship may arrive. There is always the chance that help will arrive in time to make the emergency action unnecessary. Such objections, however, fail to take account of the fact that other defenses which are predicated on a threat to person or property can take account only of the probability of harm. One can never guarantee that the uplifted knife will be plunged into the victim. If necessity is not admitted where there is a high degree of probability of disastrous consequences if action is not taken, then it can never be admitted. A person faced with such seeming necessity is and will remain in a personal moral quandary because of the person's uncertainty. Our only point is that the threat of criminal punishment is unneeded here.

(Emphases added) (internal quotation marks and footnote omitted).

Our holdings in Kealoha and DeCastro recognize the difficulty with the concept of when an actor reasonably believes his or her conduct to be "necessary to avoid an imminent harm or evil to the actor or to another." Thus, our case law simply provides considerations for interpreting this first requirement of the statute; they do not create elements which add to the requirements of HRS з 703-302(1)(a). The considerations for the first requirement of the statute are as follows: (1) whether a third alternative, that did not involve the commission of a crime, was reasonably available to the defendant; (2) whether the crime committed was not reasonably designed to actually avoid the harm or evil sought to be avoided; and (3) whether the harm or evil sought to be avoided was imminent when the person committed the crime. DeCastro, 81 Hawaii at 153-54, 913 P.2d at 564-65.

As to consideration (1), although the statute does not include language about a third legal alternative, it also does not add to the statute because it is another way of defining whether a defendant reasonably believed it was necessary to commit a crime in order to avoid harm to himself or others. A choice of evils defense is exactly what it says -- a defendant must be in a position of choosing between two evils. See United States v. Bailey, 444 U.S. 394, 409-10 (1980) ("While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils.") A natural and common definition to the term "necessary," in the context of a choice of evils defense, is that "if there was a reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm," then there is no necessity. Id. at 410 (citation and quotation marks omitted). Thus, by having a jury consider the presence of a third legal alternative does not add to the express language of the statute; instead it helps define and construe whether an action is necessary. See generally MPC з 3.02 at 10 (Tentative Draft No. 8, 1958) ("Questions of immediacy and of alternatives have bearing, of course, on the genuineness of a belief in necessity, as well as on the actor's recklessness or negligence when either is material.").

As to consideration (2), HRS з 703-302(1)(a) mentions nothing about the defendant's actions being "reasonably designed" to actually avoid a harm or evil. Nevertheless, "reasonably designed" goes to the question of degree (i.e., the nature and degree of the crime committed by the defendant in relation to the nature and degree of the harm or evil sought to be prevented). This consideration does not add to the statute because an express requirement of з 703-302(1)(a) is that "[t]he harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged[.]"

Finally, consideration (3) articulates the element of imminency and does not add anything to the requirements of HRS з 703-302(1)(a) because the statute specifically requires that the harm or evil perceived by the defendant be imminent.

Even the drafters of the MPC recognized these aforementioned considerations:

[T]he formulation makes the actor's belief in the necessity sufficient (assuming a valid choice of evils) unless the crime can be committed recklessly or negligently, in which case recklessness or negligence as to the necessity suffices. Questions of immediacy and of alternatives have bearing, of course, on the genuineness of a belief in necessity, as well as on the actor's recklessness or negligence when either is material. Not even actual necessity suffices unless the actor acted on belief in its existence; under the formulation in the draft, one cannot act by accident from necessity.

MPC з 3.02 at 10 (Tentative Draft No. 8, 1958) (Tentative Draft No. 8 remained unchanged in its final draft) (cited in MPC part I Commentaries, Vol. 2, at 9 (Off. Draft and Rev. Comm. 1962)).

To be sure, the "common law" considerations of Kealoha and DeCastro do not make it more difficult for a defendant to prevail on a choice of evils defense. The considerations are just that -- considerations. They do not add additional elements to a choice of evils defense because they are merely interpretational guidelines to assist a jury or court in determining the validity of a choice of evils defense.

We also find it noteworthy that the express considerations set forth in Kealoha and DeCastro are in accord with at least five other jurisdictions. In Commonwealth v. Capitolo, 498 A.2d 806, 808 (Penn. 1985), a Pennsylvania court was faced with an MPC-based justification statute that relieves a defendant of liability for criminal conduct if (1) the actor believed such conduct to be necessary to avoid a harm or evil to himself or to another, and (2) "the harm or evil sought to be avoided by such conduct is greater than that sought to be

prevented by the law defining the offense charged[.]" Crimes and Offenses Pa. Cons. Stat. Ann. з 503 (1983).

However, the Pennsylvania court commented that:

The defense of necessity, however, does not arise from a "choice" of several courses of actions; instead it is based on a real emergency. It can be asserted only by an actor who is confronted with such a crisis as a personal danger (to oneself or others), a crisis which does not permit a selection from among several solutions, some of which do not involve criminal acts. Accordingly, the defense can be raised only in situations that deal with harms or evils that are readily apparent and recognizable to reasonable persons. The defense cannot be permitted to justify acts taken to foreclose speculative and uncertain dangers, and is therefore limited in application to acts directed at the avoidance of harm that is reasonably certain to occur.

Furthermore, the actor must reasonably believe that the conduct chosen was necessary to avoid the greater threatened harm or evil. Because the harm must be real, and not an imagined, speculative, or non-imminent harm, the actions taken to avoid the harm must support a reasonable belief or inference that the actions would be effective in avoiding or alleviating the impending harm.

Id. at 808-09 (citations omitted).

Based on these aforementioned considerations, the court held that:

In order, then, to be entitled to an instruction on justification as a defense to a crime charged, the actor must first offer evidence that will show:

(1) that the actor was faced with a clear and imminent harm, not one which is debatable or speculative;

(2) that the actor could reasonably expect that the actor's actions would be effective in avoiding this greater harm;

(3) that there is no legal alternative which will be effective in abating the harm; and

(4) that the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.

Id. at 809.

The Pennsylvania court apparently felt that the express wording of its statute did not adequately cover some compelling considerations of a choice of evils defense. Thus, without adding elements to a statutory justification defense, it articulated considerations which, when present, would defeat a justification defense. Accord Senay v. Commonwealth, 650 S.W.2d 259, 260 (Ky. 1983) (expanding Kentucky's MPC-based choice of evils statute to include common law elements that were not present in the Kentucky statute); State v. O'Brien, 567 A.2d 582, 583-84 (N.H. 1989) (reasoning that New Hampshire's MPC-based statute sets up a balancing test wherein "the desire or need to avoid the present harm must outweigh the harm sought to be prevented," and therefore expanded the statute to include the common law element that there must be no lawful alternative); see also People v. Brandyberry, 812 P.2d 674, 677-79 (Colo. Ct. App. 1990) (inquiring into common law elements not articulated in Colorado's MPC-based statute for purposes of determining whether a jury instruction should be given); State v. Smith, 884 S.W.2d 104, 105 (Mo. Ct. App. 1994) (examining common law elements not expressed in the MPC-based statute to determine if a necessity or

justification defense instruction should be submitted to the jury).⁽¹⁰⁾

Accordingly, we reaffirm our holdings in Kealoha and DeCastro.

4. The choice of evils instruction was erroneous; however, a vacatur of conviction is not required.

The jury instruction in this case, patterned after Hawaii Jury Instruction 7.12, stated as follows:

It is a defense to the offense charged that the defendant's conduct was legally justified. The law recognizes the "choice of evils" defense, also referred to as the "necessity" defense.

(Emphasis added.)

The jury instruction on the choice of evils justification defense complies with the language of HRS з 703-302(1)(a), as well as our holdings in Kealoha and DeCastro, to the extent that the first and third elements follow the case law of Kealoha and DeCastro (i.e., (1) no alternative available, and (3) the crime committed was not reasonably designed to actually avoid the harm or evil sought to be avoided), and the second and fourth elements track the express language of HRS з 703-302(1)(a) (i.e., (2) imminent harm, and (4) the harm or evil sought to be avoided is greater than that sought to be prevented).

Nevertheless, we find error with the instruction because it fails to articulate that the "common law" elements set forth in Kealoha and DeCastro are considerations for purposes of the first requirement of the statute. In other words, the instruction does not first expressly set forth the statutory requirements pursuant to HRS з 703-302. Instead, it attempts to incorporate both statutory requirements and case law

considerations without distinguishing between the two. Such an incorporation misstates the law.⁽¹¹⁾

An accurate reflection of the law would be to first acknowledge that, pursuant to HRS з 703-302(1)(a), conduct by the defendant is justifiable if (1) the defendant engages in conduct which he or she believes to be reasonably necessary to avoid an imminent harm or evil to the actor or to another, and (2) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged. HRS з 703-302(1)(a).

Thereafter, the instruction should advise the jury that with respect to requirement (1) above, a person does not reasonably believe that it is necessary to commit a crime to avoid an imminent harm or evil to himself or others when one or more of the following is a fact:

(a) A third alternative that did not involve the commission of a crime was reasonably available to the person;

(b) The crime committed was not reasonably designed to actually avoid the harm or evil sought to be avoided; or

DeCastro, 81 Hawaii at 153-54, 913 P.2d 564-65.

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. Error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.

State v. Loa, 83 Hawaii 335, 350, 926 P.2d 1258, 1273 (citation omitted), reconsideration denied, 83 Hawaii 545, 928 P.2d 39 (1996).

Although the jury instruction in this case did not accurately reflect the law on choice of evils in Hawaii, such an error does not require a reversal of Defendant's conviction.

In this case, Defendant presented one argument to the jury for a choice of evils defense: that his co-worker asked him to bring some "protection" to work because an anonymous telephone call indicated that the company would be robbed that day. See n.4.

However, the facts surrounding the Place to Keep Loaded Firearm charge arose out of Defendant's possession of a loaded gun in his waistband while sitting in his car at a gas station. See n.3. Thus, even if we were to accept that Defendant's only reason for carrying a loaded gun that day was because of an anonymous tip that his workplace would be robbed, it does not logically follow that he had no choice but to carry a loaded gun to a gas station which was located away from his work place. If Defendant's reason for carrying a loaded gun were true, then he should have left his gun at the location that was supposed to have been robbed. In light of the factual basis for the charge, Defendant's argument that he had no choice but to bring a loaded gun to work is too far removed. As such, we believe there is no reasonable possibility that the erroneous jury instruction contributed to his conviction of Place to Keep Loaded Firearm.⁽¹²⁾

5. The jury instruction did not improperly place the burden of proving the defense on Defendant.

Defendant also argues that the four conditions set forth in the jury instructions "improperly placed the burden of proving the defense on the defendant by implying that the burden was a `question of fact' to be decided by the jury." In other words, "[t]he result of [the jury instruction] is a `shifted burden.' In essence, the jury was `given the opportunity to reject the defense as less than credible' before the state was put to the test of disproving the defense beyond a reasonable doubt." However, it is a long-standing rule in Hawaii that

[w]here the defense is justification, once evidence of a fact, or set of facts, which negatives penal liability has been introduced, the burden is on the prosecution to disprove the facts that have been introduced or to prove facts negativing the justification defense and to do so beyond a reasonable doubt.

State v. Straub, 9 Haw. App. 435, 444, 843 P.2d 1389, 1393 (1993) (citations omitted).

Thus, the "result" complained of by Defendant is exactly what is mandated by law: that the defendant first has the burden to put into evidence a set of facts which negative penal liability and, once accomplished, the burden shifts to the State to disprove the defense beyond a reasonable doubt. See id. As such, Defendant's argument is without merit.

IV. CONCLUSION

In conclusion, we reaffirm our holdings in Kealoha and DeCastro and, therefore, affirm the June 28, 1996 Amended Judgment, Conviction and Probation Sentence.

Rose Anne Fletcher, Deputy

Public Defender, on the

brief for defendant-

appellant.

Mark Yuen, Deputy Prosecuting

Attorney, City and County

of Honolulu, on the brief

for plaintiff-appellee.

1. Defendant-Appellant Malakai Maumalanga's (Defendant) Notice of Appeal indicates that he is appealing the May 28, 1996 Judgment of Conviction and Probation Sentence. However, an Amended Judgment of Conviction and Probation Sentence was filed on June 28, 1996, and therefore we will address Maumalanga's appeal as though he were appealing the June 28, 1996 amended judgment.

2. The Place to Keep Loaded Firearm charge arose out of the following facts: (1) that Defendant carried a loaded pistol; (2) that Defendant had no license to do so; and (3) that Defendant was carrying it in his waistband while in the car at the gas station. See Hawai`i Revised Statutes (HRS) з 134-6(c) (1993), infra n.4.

3. The relevant portion of defense counsel's closing argument is as follows:

Let's talk about, I believe, it's Count 4, and that's the position of the gun.

Actually, . . . [h]e is charged with not keeping it in the right place.

Now the Defense to this charge, and this is what we are asserting this choice of evils.

Now [Defendant] had to have the gun, he had to have those guns for a reason. Choice of evils. . . .

. . . [The police] don't protect [Defendant]. [Defendant] calls them, and what happens, they end up harassing him because people don't want to let go of their own beliefs that [Defendant] is a gang member. Either the Pinoi-Boys either, neither the BBI or the police; so [Defendant] has no choice, he doesn't have the police to protect him. He knows the Pinoi-Boys are going after him, so he buys guns to protect himself and protect his family.

He doesn't have a choice but to have those guns in his possession; but he is not charged with possession. So you have to remember that he is not charged with possession, but he is charged with place to keep; and the only reason why he takes those guns out of that house and take it down to his work place is because [his co-worker] calls him up and says, "We are going to get robbed. Can you bring some protection? Help us out."

4. HRS зз 134-6(c) and (e) (1993) state:

Carrying or use of firearm in the commission of a separate felony; place to keep firearms; loaded firearms; penalty.

. . . .

(c) Except as provided in sections 134-5 and 134-9, all firearms and ammunition shall be confined to the possessor's place of business, residence, or sojourn; provided that it shall be lawful to carry unloaded firearms or ammunition or both in an enclosed container from the place of purchase to the purchaser's place of business, residence, or sojourn, or between these places upon change of place of business, residence, or sojourn, or between these places and the following: a place of repair; a target range; a licensed dealer's place of business; an organized, scheduled firearms show or exhibit; a place of formal hunter or firearm use training or instruction; or a police station. "Enclosed container" means a rigidly constructed receptacle, or a commercially manufactured gun case, or the equivalent thereof that completely encloses the firearm.

. . . .

(e) Any person violating subsection (a) or (b) shall be guilty of a class A felony. Any person violating this section by carrying or possessing a loaded firearm or by carrying or possessing a loaded or unloaded pistol or revolver without a license issued as provided in section 134-9 shall be guilty of a class B felony. Any person violating this section by carrying or possessing an unloaded firearm, other than a pistol or revolver, shall be guilty of a class C felony.

5. Defendant's proposed jury instruction stated as follows:

It is a defense to the offense in Count IV of the complaint, Place to Keep Loaded Firearm, that the

[D]efendant's conduct was legally justified. The law recognized the "choice of evils" defense, also referred to as the "necessity" defense.

The "choice of evils" defense justifies the [D]efendant's conduct if the defendant reasonably believed that compliance with the law would have resulted in greater harm to himself or another than the harm sought to be prevented by the law defining the offense charged.

The "choice of evils" defense is not applicable if the prosecution has proved beyond a reasonable doubt that:

1) [Defendant] did not reasonably believe that his conduct was necessary in order to avoid an imminent harm or evil to himself or another; or

2) the harm or evil sought to be avoided by [Defendant's] conduct was not greater than the harm sought to be prevented by this law defining the offense charged.

Accordingly, if the prosecution has not proven beyond a reasonable doubt that the defendant's conduct was not legally justified by the "choice of evils" defense, then you must find the defendant not guilty of Place to Keep Loaded Firearm, in Count IV. If the prosecution has done so, then [you] must find that the "choice of evils" defense does not apply.

6. The original judgment was filed on March 28, 1996, but it failed to indicate the disposition of Count IV - Place to Keep Loaded Firearm. Consequently, an amended judgment was filed on June 28, 1996 and indicated that Defendant was found guilty of Count IV - Place to Keep Loaded Firearm.

7. HRS з 703-302 (1993) states in its entirety:

Choice of evils. (1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that:

(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for the actor's conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

(3) In a prosecution for escape under section 710-1020 or 710-1021, the defense available under this section is limited to an affirmative defense consisting of the following elements:

(a) The actor receives a threat, express or implied, of death, substantial bodily injury, or forcible sexual attack;

(b) Complaint to the proper prison authorities is either impossible under the circumstances or there exists a history of futile complaints;

(d) No force or violence is used against prison personnel or other innocent persons; and

(e) The actor promptly reports to the proper authorities when the actor has attained a position of safety from the immediate threat.

Subsections (1)(b) and (c) are not applicable in this case because neither party asserts, and the record does not indicate, that either section applies. Subsection (2) does not apply because neither party asserts, and the record does not indicate, that Defendant was reckless or negligent in bringing about the situation. Subsection (3) does not apply because this was not a prosecution for escape.

8. Section 3.02 of the Model Penal Code (MPC) provides:

Section 3.02. Justification Generally: Choice of Evils.

(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself [or herself] or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his [or her] conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

MPC з 3.02 (Official Draft 1962) (asterisk omitted). The only substantial difference between the Hawaii Penal Code's (the Code) version of the choice of evils defense and the MPC's version is that the Code requires an element of imminency.

9. State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973) was decided shortly after the enactment of HRS з 703-302. However, the facts of the case occurred prior to the enactment, thus the Marley court made no mention of HRS з 703-302.

10. Additionally, there are jurisdictions which do not codify a choice of evils or necessity defense. In those jurisdictions, the courts appear to follow the common law elements for a choice of evils defense which provide an expanded analysis for determining whether a defendant is excused from liability. See People v. Metters, 72 Cal. Rptr. 2d 294, 303 (1998) (applying common law choice of evils defense elements in the absence of an applicable statute); State v. Crawford, 521 A.2d 1193, 1200-01 (Md. 1987) (applying the common law choice of evils defense in the absence of a statute); State v. Champa, 494 A.2d 102, 104 (R.I. 1985) (quoting common law choice of evils defense in the absence of an applicable statute).

11. To the extent that we have found error with the instruction given in this case, we declare Hawaii Jury Instruction 7.12 to be an erroneous statement of the law.

12. We are not saying that as a matter of law the instruction should not have been given. A defendant is "entitled to an instruction on every defense or theory of defense having any support in the evidence, provided such evidence would support the consideration of that issue by the jury, no matter how weak, inconclusive or unsatisfactory the evidence may be." State v. Robinson, 82 Hawaii 304, 313-14, 922 P.2d 358, 367-68 (1996) (emphasis in original) (quotation marks and citation omitted). Given this standard, Defendant was entitled to an instruction on a choice of evils defense.

Our conclusion that there was no reasonable possibility that the erroneous jury instruction contributed to Defendant's conviction in this case is based upon the evidence submitted to the jury. It is not a conclusion of law that Defendant was not entitled to a choice of evils instruction.