2aHawaii
General Topics => General Discussion => Topic started by: changemyoil66 on December 26, 2017, 10:03:33 AM
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http://www.staradvertiser.com/2017/12/25/breaking-news/suspect-in-ewa-beach-attempted-murder-identified/
Word on SSH is that this is the 2nd time the homeowners home was broken into. 2 masked men entered, and 1 was waiting in the car outside.
And that it wasn't his gun, but the robbers gun that was used against him.
This is also a gated community.
According to KSSK, the homeowner was detained by HPD, but released this morning with no charges so far.
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HPD said the victim drove himself to a nearby medical facility, where he is in stable condition.
Heard about this on the radio this morning.
As an aside, the guys on 98.5 were spewing so much misinformation about gun laws, particularly use of force when they were talking about this incident. That's how that crap perpetuates.
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I thought this was in Ewa Beach?
Well, anyway the news did a great job at making self defense look like a crime, while the poor "victim" (thieving violent criminal) look like a daisy.
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Heard about this on the radio this morning.
As an aside, the guys on 98.5 were spewing so much misinformation about gun laws, particularly use of force when they were talking about this incident. That's how that crap perpetuates.
Bunch of clowns. Do you need an education to be on the radio?
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Bunch of clowns. Do you need an education to be on the radio?
greg hammer on krtr probably going off too
he likes to use the "I was a cop, and no one needs these types of firearms" a lot
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F'um all.
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Rarely listen to radio. Morning radio with the exception of Perry on KSSK is just a vocal rehash of mid 90s Clueless. Vocab is limited to "like" "honestly" "personally" and "OMGs"
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Rarely listen to radio. Morning radio with the exception of Perry on KSSK is just a vocal rehash of mid 90s Clueless. Vocab is limited to "like" "honestly" "personally" and "OMGs"
I just like to have something on in the morning when i get ready. And 98.5 has good reception. Other stations are pretty crappy.
I rarely listen to KSSK. I used to listen for some local news, but got sick of Perry always adding his commentary.
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greg hammer on krtr probably going off too
he likes to use the "I was a cop, and no one needs these types of firearms" a lot
One of the local radio hosts was into guns. I recall him bringing his family to SSF. They had a blast. I can’t remember his name now. Damn, getting old.
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http://www.staradvertiser.com/2017/12/25/breaking-news/suspect-in-ewa-beach-attempted-murder-identified/
Word on SSH is that this is the 2nd time the homeowners home was broken into. 2 masked men entered, and 1 was waiting in the car outside.
And that it wasn't his gun, but the robbers gun that was used against him.
This is also a gated community.
According to KSSK, the homeowner was detained by HPD, but released this morning with no charges so far.
interesting how it says that he was shot on the property, not in the house
yes, I know the house is on the property
just interesting how they worded it
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SA totally twisted the story to make the homeowner look like a loon blasting someone that was just taking a shortcut across his lawn
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media lost its mind
rightful homeowner gets branded as a criminal and burglar is the victim
1st Lady trims a tree and media said she is ordering its removal
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KHON had more details on the 6:00 news tonight. They said the "victim" was shot in the back, and asked a lawyer if that was bad for the homeowner. He said it all depends on the threat the homeowner faced. But residents have to be careful about worrying what the DA might think. Residents have to decide in 2 seconds what they must do to protect themselves and their families. It's always better to be judged later by twelve than to be carried by six at your funeral.
Yes, I was shocked they found such a lawyer to side with the property owner.
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media lost its mind
rightful homeowner gets branded as a criminal and burglar is the victim
1st Lady trims a tree and media said she is ordering its removal
"Orders Removal of Near-200-Year-Old Tree From White House" to be more precise. Then later they say "specialists at the United States National Arboretum, which determined the magnolia tree must be removed. The tree is “completely dependent on artificial support,” the document read." Complete flamebaiting.
And I cant believe those pricks at the SA called the burglar the "victim".
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KHON had more details on the 6:00 news tonight. They said the "victim" was shot in the back, and asked a lawyer if that was bad for the homeowner. He said it all depends on the threat the homeowner faced. But residents have to be careful about worrying what the DA might think. Residents have to decide in 2 seconds what they must do to protect themselves and their families. It's always better to be judged later by twelve than to be carried by six at your funeral.
Yes, I was shocked they found such a lawyer to side with the property owner.
this is the kind of crap that emboldens these crumbs to play stupid games. We need to show these criminals don't f*ck with us. What I don't get is the PSAs that tell us to surrender our stuff to criminals when confronted. And these PSAs say that it is not worth it. Tell that shit to people who work hard for their families.
My friend had his home burglarized by a high school kid last year. The piece of shit took some cash and took a selfie with the stolen iPad. I posted his pic on this site. He just got a slap on his wrist. A couple weeks later after the dumb kid was arrested my same friend had all four tires slashed at his home. Coincidence? I told him be careful as there was a criminal on his property that had an edged weapon. He shrugged it off and didn't want to panic the wife.
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The media trying to play the "guns are bad card", but all the comments support the homeowner and said they would have done the same. The people are speaking.
I think people are fed up with the state doing nothing. Robber gets released early, if not only getting probation. They know HPD only arrest, but its the state that lets them go. Multiple pages of arrest and the guy is still on the street. Etc...
Even hanabusas fb page, she posted how HR38 is bad. But 99% of the comments support the bill.
Sent from my SM-G920V using Tapatalk
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Comments from "Unassailable":
"Protecting property is not enough to justify the use of force. You also cannot claim self-defense if they can retreat in complete safety." This is why even thinking of buying a gun for self-defense is a complete farce. Treat others with respect and hope for the best.
How do you treat a robber, burglar, murderer or rapist with respect?
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Comments from "Unassailable":
"Protecting property is not enough to justify the use of force. You also cannot claim self-defense if they can retreat in complete safety." This is why even thinking of buying a gun for self-defense is a complete farce. Treat others with respect and hope for the best.
How do you treat a robber, burglar, murderer or rapist with respect?
You never saw or read Les Misérables? :shaka:
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Media asks questions. Doesn't like the answers they get. Buries story.
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I actually thought KHON's story was interesting.
They reported guy shot int the back, but then interviewed attorney who said split-second decisions can be argued multiple ways.
They interviewed neighbors who were supportive of the defense of the community and family.
http://khon2.com/2017/12/26/self-defense-ewa-beach-resident-shoots-man-suspected-of-trespassing-in-back/
We have little facts on this shooting, but KHON presented it as close to pro-2A as they could on this one I thought.
Actually aired an attorney saying "better to be judged by 12 than carried by 6"
Wonder if Joe Moore is pro-2A?
(And remember HRA testified against strengthening Hawaii's Castle Doctrine just a session or 2 ago.)
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Just because you intend to give up your property doesn't necessarily mean you'll escape unharmed. There's many cases where this doesn't prove2 you be the case. They'll rob you, then assault or kill you
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Just because you intend to give up your property doesn't necessarily mean you'll escape unharmed. There's many cases where this doesn't prove2 you be the case. They'll rob you, then assault or kill you
There are some specific scenarios (e.g. armed robber, unarmed convenience store clerk) where the outcome of resistance compared to non-resistance is "worse" for the victim of the crime, but otherwise, resistance generally leads to a better outcome, and the best outcomes of all are when armed resistance is used by the intended victim (and the best arm to resist with is a firearm). This article goes into detail about the various possible scenarios. Why would the government advise (and enforce in the case of carry outside the home) the exact opposite? (That's a rhetorical question...).
Resistance to Violent Crime: What Does the Research Show?
http://www.activeresponsetraining.net/resistance-to-violent-crime-what-does-the-research-show
A study by Gary Kleck found that the probability of serious injury in a criminal attack is two and a half times greater for women offering no resistance than women resisting with a firearm. Men are also safer if they resist with a firearm than if they do not resist at all, but the difference is smaller (1.5 times less likely to be injured). Kleck and Sayles. “Rape and Resistance” Social Problems. Vol. 37. No. 2. 1990.
Almost all studies show that resistance is successful in preventing the completion of a personal crime. This holds true in rape, robbery, and assault. Resistance is an especially effective tactic in preventing most rapes. A woman who physically resists a rapist doubles her chance of escaping rape. Bachman, Saltzman, Thompson, and Carmody, “Disentangling the Effects of Self-Protective Behaviors on the Risk of Injury in Assaults Against Women”. Journal of Quantitative Criminology, Vol. 18, No 2, June 2002
And if you want to get more into the "weeds"...
Victim Resistance and Offender Weapon Effects in Robbery
Gary Kleck and Miriam A. DeLone
Journal of Quantitative Criminology, Vol. 9, No. 1, 1993
Many police officers advise victims and prospective victims not to resist
criminals [some particularly egregious examples are given by Anderson
(1991)]. In light of the evidence summarized here, this advice seems dubious.
While this advice is undoubtedly sincere, it usually appears to be based on
selectively recalled "cop war stories" and similar anecdotal evidence derived
informally from small, unrepresentative samples of victims who reported
their crimes to police.
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interesting how it says that he was shot on the property, not in the house
yes, I know the house is on the property
just interesting how they worded it
my fear is that they will still charge the homeowner
I hope my fears are wrong...
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my fear is that they will still charge the homeowner
I hope my fears are wrong...
^^^This. They haven't charged him yet, probably the AG is getting more info. I'm sure they're going to look at ballistics to see at what distance the robber was shot at.
But then again, it's how the homeowner articulates why he shot.
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^^^This. They haven't charged him yet, probably the AG is getting more info. I'm sure they're going to look at ballistics to see at what distance the robber was shot at.
But then again, it's how the homeowner articulates why he shot.
homeowner better have a good lawyer ready.
In looking at the video, there really isn't a bunch of outside space after a burglar jumps the fence. Even if they're out in the patio area,they're pretty much threatening the home. At least in my opinion.
A lot of times, people will have screen or sliding doors that are open to let the breeze in as well.
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How do you treat a robber, burglar, murderer or rapist with respect?
You shoot them in the head to end their pain quickly.
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A study by Gary Kleck found that the probability of serious injury in a criminal attack is two and a half times greater for women offering no resistance than women resisting with a firearm. Men are also safer if they resist with a firearm than if they do not resist at all, but the difference is smaller (1.5 times less likely to be injured). Kleck and Sayles. “Rape and Resistance” Social Problems. Vol. 37. No. 2. 1990.
Almost all studies show that resistance is successful in preventing the completion of a personal crime. This holds true in rape, robbery, and assault. Resistance is an especially effective tactic in preventing most rapes. A woman who physically resists a rapist doubles her chance of escaping rape. Bachman, Saltzman, Thompson, and Carmody, “Disentangling the Effects of Self-Protective Behaviors on the Risk of Injury in Assaults Against Women”. Journal of Quantitative Criminology, Vol. 18, No 2, June 2002
I would have to dig to find the source because I used it in a college newspaper article over a decade ago but if i recall correctly, when a woman uses a weapon to resist rape she is successful like 95% of the time.
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homeowner better have a good lawyer ready.
In looking at the video, there really isn't a bunch of outside space after a burglar jumps the fence. Even if they're out in the patio area,they're pretty much threatening the home. At least in my opinion.
A lot of times, people will have screen or sliding doors that are open to let the breeze in as well.
Yup.
He is going to have to be able to articulate that he reasonably felt he was in danger of either Rape, murder, sodomy, serious bodily injury, or kidnapping. He would then need to articulate that he did not have a reasonably safe way to retreat. Although since it was his own home, people are not required to retreat from their home.
Depending on what the crime scene shows I think it fairly easy to explain why he shot. There is reason to believe that a home intruder may be armed and there is reason to believe that a home intruder may tie up the occupant (kidnapping). I think he might also be able to explain that he didn't think he could make it inside and lock the door in time and that he was afraid he could be hurt if they attacked him before he made it in the door. On top of that scientific studies of shootings have shown that due to human reaction times it is possible to decide to shoot when someone is facing and end up hitting them in the back.
If the prosecutors wanted to charge him they would have a tough time proving he wasn't in danger I think.
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my fear is that they will still charge the homeowner
I hope my fears are wrong...
What would you as a juror vote?
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What would you as a juror vote?
depends on the testimony and the evidence
but if he was shot outside the house, the law seems pretty clear...
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depends on the testimony and the evidence
but if he was shot outside the house, the law seems pretty clear...
:thumbsup:
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Please for the love of god do not quote the whole thing in a reply.
https://www.capitol.hawaii.gov/hrscurrent/vol14_Ch0701-0853/HRS0703/HRS_0703-0304.htm (https://www.capitol.hawaii.gov/hrscurrent/vol14_Ch0701-0853/HRS0703/HRS_0703-0304.htm)
§703-304 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.
(3) Except as otherwise provided in subsections (4) and (5) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.
(4) The use of force is not justifiable under this section:
(a) To resist an arrest which the actor knows is being made by a law enforcement officer, although the arrest is unlawful; or
(b) To resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
(i) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or
(ii) The actor believes that such force is necessary to protect himself against death or serious bodily injury.
(5) The use of deadly force is not justifiable under this section if:
(a) The actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
(i) The actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and
(ii) A public officer justified in using force in the performance of his duties, or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape, is not obliged to desist from efforts to perform his duty, effect the arrest, or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.
(6) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime. [L 1972, c 9, pt of §1; ree L 1975, c 163, §3; am L 2001, c 91, §4]
COMMENTARY ON §703-304
This section substantially adopts the Model Penal Code rules on justification of the use of force in self-protection. It has been rewritten and reorganized to make it more easily understandable.
Subsection (1) requires a belief by the actor that the use of protective force is actually necessary, and that unlawful force (defined in §703-300) is to be used by the assailant. He must believe, further, that immediate use of force is required, although the threatened harm to him need not be "imminent," as the rule was sometimes phrased at common law. It is enough that unlawful force is threatened on the present occasion by his assailant. The actor may make his defensive move without waiting for his assailant to load his gun or to summon reinforcements. Finally, the actor must believe that the particular degree of force used by him is necessary. This formulation is not meant to require a precise equation, but it will limit the defense to situations in which a particular scope and degree of retaliation is believed by the actor to be appropriate to the aggression.
Subsections (2) and (5) strictly limit the use of deadly force. Under the circumstances specified in subsection (2), the actor may use deadly force if he believes it is necessary to protect himself against death, serious bodily harm, kidnapping, rape, or forcible sodomy. This formulation has two implications: (a) the actor must believe that deadly force is the only viable means of preventing the specified harm, and (b) the actor must believe that one of the specified harms is threatened on the present occasion. "Deadly force" is defined in §703-300. Its use is further restricted by subsection (5). Deadly force may not be used if the actor provoked his assailant's use of force against himself in the same encounter with the purpose of causing death or serious bodily injury. Of course, if he intends only moderate harm and receives a deadly response, the initial aggressor may respond with deadly force. The use of deadly force is also denied when the actor can avoid using it with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right to it, or by complying with a demand that he refrain from taking an action which he has no legal duty to take. In any of these cases, the Code may seem to be opting for cowardice. However, it should be the strong principle of any criminal code to prevent death wherever possible. To quote the Model Penal Code commentary,
It rests, of course, upon the view that protection of life has such a high place in a proper scheme of social values that the law cannot permit conduct which places life in jeopardy, when the necessity for doing so can be avoided by the sacrifice of the much smaller value that inheres in standing up to an aggression.[1]
However, a duty to retreat or take over evasive action is not imposed in two situations. Subsection (5), subparagraph (b)(i), states that the actor is not required to retreat from his dwelling or his place of work unless he was the initial aggressor or unless he is assailed in his place of work by another person whose place of work he knows it to be. We would not normally expect a man to abandon his home to an aggressor and would allow him to stand his ground, although an exception is made, consistent with paragraph (a), if the actor is the initial aggressor. The exception for an attack in a man's place of work is new with the Model Penal Code. The same principles which permit a man to remain in his home would, for example, permit a shopkeeper to defend himself in his place of business without abandoning it to attackers. Subparagraph (b)(ii), of the same subsection, relates to public officials or persons assisting them using force in the performance of duty. It would be against public interest to require a public officer to abandon his duty if he meets resistance. This Code follows the Model Penal Code in extending the justification to all arrests and performances of duty, even if they are technically unlawful. Throughout chapter 703 the rule is that resistance to unlawful arrest is to be made in court rather than physically.
The Code also specifically requires surrendering possession of a thing when the attacker asserts a claim of right thereto. Where a person offers deadly force unless another surrenders property to him, and claims a right to the property, it is certainly sound policy to save life and litigate the disputed ownership in court. Naturally, however, this rule does not apply in cases of robbery, where the assailant can make no claim of right, and it is the purpose of the Code to permit deadly resistance to robbery if the conditions of subsection (2) are met. Finally, deadly force is impermissible if the actor can avoid using it by complying with a demand that he refrain from any action which he has no duty to take. Again, the policy of saving life seems more insistent than the right of the individual to complete freedom of action.
Subsection (3) states the generally applicable rule that the actor need not retreat or take any other evasive action before estimating the necessity for the use of force in self-protection.
Subsection (4) sets general limits on the use of self-protective force. Paragraph (a) follows the Model Penal Code in forbidding any use of force to resist an arrest which the actor knows is being made by a peace officer. Resistance to even an unlawful arrest should be made in court. No valid social policy is served by permitting physical resistance to peace officers who are known as such by the actor. If the law were to permit physical resistance, it would in effect be sanctioning unnecessary injury. However, only force for the purpose of resisting an arrest is proscribed. If the officer threatens to use unlawful force after the arrest, the normal self-protection rules would apply. In other words, the actor may resist a "peril greater than arrest."[2] Paragraph (b) is closely related to §703-306 (protection of property) which permits the use of force by the occupier or possessor of property to protect it. The actor may not use force to counter that permissible force, when it is directed at him under a claim of right to protect the property, unless he is a public officer or a person assisting him or a person making or assisting in a lawful arrest, or unless he believes that he must use force to protect himself against death or serious bodily harm. A third Model Penal Code exception, dealing with a right of re-entry or recaption, has been omitted. As explained in the commentary to §703-306, it does not seem wise to deal separately with these matters. This Code treats them under the more general rules relating to protection of property.
Subsection (6) recognizes that confinement may be used as protective force. Because of the continuing nature of confinement, however, the Code requires the actor to terminate the confinement as soon as he knows he can do so safely. He has no such duty if the person is arrested, simply because the legality of a confinement will then be tested by ordinary judicial processes.
Previous Hawaii case law required that the defendant's belief be reasonable.[3] Contrary to subsection (3) of the Code, under the Hawaii cases, the defendant must retreat before he uses any force, except in those circumstances where deadly force is the only way serious felonies against persons can be prevented.[4] In the latter situations, it appears that Hawaii case law, like the Code, would require retreat if it could be accomplished with complete safety.[5] To the extent that Hawaii cases demand "imminent" danger, in the common law sense,[6] the Code represents a change in the law. Finally, the subsection on confinement is an addition to Hawaii law.
Case Notes
Defendant entitled to instruction on self-defense whenever testimony fairly raises the issue, no matter how weak. 59 H. 148, 577 P.2d 793 (1978).
Defendant is entitled to jury instructions on self-defense where there is any evidence in the record to support jury consideration of the issue. 60 H. 504, 591 P.2d 615 (1979).
In self-defense to charge of homicide, admissibility of evidence of deceased's character for violence and aggression. 61 H. 328, 603 P.2d 151 (1979).
Where trial court conspicuously omitted from its self-defense instruction any reference to the use of "force", which was essential to defendant's defense at trial, insofar as defendant expressly disputed whether defendant's use of force constituted "deadly force", and instructed jury that, as a matter of law, defendant employed "deadly force" against victim because death in fact resulted from defendant's use of force, trial court's instruction was not harmless beyond a reasonable doubt. 101 H. 377, 69 P.3d 88 (2003).
Where defendant raised the issue of self-defense, trial court did not err in concluding that prosecution proved that defendant was not acting in self-defense when defendant shot victim. 107 H. 469, 115 P.3d 648 (2005).
Where trial court's jury instruction sufficiently tracked subsection (3) as it informed the jury that the reasonableness of defendant's belief must be viewed from defendant's perspective, appeals court properly determined that the instruction was consistent with the language of this section. 118 H. 452, 193 P.3d 368 (2008).
Jury instruction relating to the defense of the use of force for the protection of other persons pursuant to §703-305 was erroneous as it improperly included elements relating to the defense of the use of force in self-protection under this section; however, error was harmless because there was no evidence in the record to support a finding that, under the circumstances as a person would reasonably believe them to be, defendant was justified in using force in defense of others. 123 H. 205, 231 P.3d 478 (2010).
Jury instruction explaining the subjective portion of an assessment of petitioner's self-defense claim not misleading where jury was instructed to "place [themselves] in the shoes of the [petitioner]" and to assess petitioner's "subjective belief"; reading the instructions as a whole, the omission of specific language from State v. Lubong was not necessary to further explain the subjective portion. 129 H. 206, 297 P.3d 1062 (2013).
Objective portion of the self-defense jury instruction was not erroneous and misleading where jury instruction substituted the term "reasonable person" with "reasonably prudent person"; "reasonably prudent person" and "reasonable person" are interchangeable terms and a reasonable juror would not believe there was a difference between the two terms. 129 H. 206, 297 P.3d 1062 (2013).
The circuit court's self-defense jury instruction was not erroneous; among other things, the jury instruction was based on then-current Hawaii Pattern Jury Instructions-Criminal (HAWJIC) 7.01 with regard to self-defense and petitioner's argument that the instruction should have included language in subsection (3) regarding retreating and other acts, failed. 131 H. 463, 319 P.3d 382 (2014).
Defendant's claim of justification, in defense against prosecution for terroristic threatening, was established regardless of whether or not defendant used deadly force. 1 H. App. 167, 616 P.2d 229 (1980).
Evidence indicated defendant could have retreated safely; attack with baseball bat using sufficient force to break complainant's arm constituted deadly force. 2 H. App. 369, 633 P.2d 547 (1981).
Defendant did not reasonably believe that kicking person on floor was immediately necessary to protect self. 2 H. App. 577, 636 P.2d 1365 (1981).
State failed its burden of introducing substantial evidence disproving defendant's facts or proving facts negativing defendant's self-protection justification defense. 9 H. App. 435, 843 P.2d 1389 (1993).
There was substantial evidence to support trial court's conclusion that a reasonable person would not have believed that it was necessary to use deadly force on the particular occasion. 77 H. 429 (App.), 886 P.2d 766 (1994).
Trial court did not err in denying defendant's request that in addition to the choice of evils defense under §703-302, jury be instructed on the justification defenses of use of force in the protection of self and others under this section and §703-305; defendant's theory of defense was fully and adequately covered by the choice of evils instruction which the trial court gave and under the circumstances of the case, there was no reasonable possibility that the jury, which rejected defendant's choice of evils defense, might have embraced defenses based on this section and §703-305. 114 H. 507 (App.), 164 P.3d 765 (2007).
Prosecution's misstatement of law was not harmless error where (1) prosecution misstated the law concerning self-defense by incorrectly imputing a requirement that defendant must have intended to kill the victim in order for the defense of self-protection to apply, and (2) the trial court did not correct this misstatement by either sustaining defense counsel's objection or curing the misstatement in its jury instructions. Thus, if the jury believed this misstatement, it would have incorrectly concluded that the defense of self-protection was inapplicable since defendant clearly stated that defendant never intended to kill the victim. 120 H. 420 (App.), 209 P.3d 1234 (2009).
Where petitioner was not charged with assault for confining victim to the ground, for which a jury instruction regarding confinement may have been warranted, but rather was charged with murder in the second degree for firing a shotgun at victim resulting in victim's death, and respondent State did not rely at trial on a theory that petitioner unlawfully confined victim, trial court not required, when instructing jury regarding self-defense, to instruct the jury regarding relationship between "confinement" and self-defense pursuant to subsection (6). 129 H. 206, 297 P.3d 1062 (2013).
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§703-304 Commentary:
1. M.P.C., Tentative Draft No. 8, comments at 24 (1958).
2. Id. at 19.
3. State v. Clyde, 47 Haw. 345, 388 P.2d 846 (1964).
4. King v. Bridges, 5 Haw. 467 (1885).
5. Id.
6. State v. Clyde, 47 Haw. 345, 388 P.2d 846, 852 (1964); Territory v. Yadao, 35 Haw. 198, 201 (1959).
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Its important to look at the notes and the commentary after the law itself, It has been re-summarized to make it easier/clearer to understand.
It occurred outside the persons home, and the home owner had other options (retreat into the home) then deadly force. By approaching and saying he has a gun the home owner provoked the situation causing the need for deadly force. Both of which nolify the use of deadly force in Hawaii (not saying agree but the law seems pretty clear)
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Its important to look at the notes and the commentary after the law itself, It has been re-summarized to make it easier/clearer to understand.
It occurred outside the persons home, and the home owner had other options (retreat into the home) then deadly force. By approaching and saying he has a gun the home owner provoked the situation causing the need for deadly force. Both of which nolify the use of deadly force in Hawaii (not saying agree but the law seems pretty clear)
It REALLY depends on the prosecutor & judge in the matter, as well as having good legal council, and not self incriminating yourself. Even though the homeowner may be guilty by the letter of the law, they may not pursue due to circumstances. Such as a law abiding citizen being taken advantage of by a methhead with 999 prior arrests. Such as facing overwhelming general public outrage. Such as the unlikelyhood of a murder conviction by a jury of 12 peers. Such as the details of the situation coming down to the word of a law abiding homeowner against a drugged out methhead (or a dead one).
----------------------------------------------
Anyone remember this case?
Hardworking poor immigrant farmer (no prior convictions) confronts unarmed methhead thief (who has stolen from him previously with a rapsheet as long as santa's naughty list), fills him full of buckshot (on his land, not in his home), thief dies. Over the next couple years, the city quietly lets the case fade away
Baccam was accused of fatally shooting Marcelino Pacheco, 38, who was found dead on Malaekahana Road on Sept. 7, 2004, after Baccam walked into the Wahiawa District Police Station to report the incident.
Baccam fired a shotgun in self-defense because he “faced a terrifying encounter and felt the need to protect himself,” his attorney, Todd Eddins, said at a Sept. 14, 2004, court hearing.
Pacheco bled to death from shotgun-pellet wounds in the legs and thigh. City Deputy Medical Examiner Dr. William Goodhue testified at a hearing in 2004 that Pacheco had crystal methamphetamine in his system, which contributed to the bleeding.
Pacheco had 24 prior arrests and three convictions for petty misdemeanors, police reported. Baccam had no criminal record.
Acting Circuit Judge Hilary Gangnes dismissed the second-degree murder charge on Nov. 8, 2006, because the prosecutor’s office took longer than 180 days to bring the case to trial, in violation of Hawaii’s speedy trial law.
But Gangnes ruled that city prosecutors could reinstate the charge. Deputy Prosecutor Russell Uehara said at the time that the office was considering refiling a murder or a manslaughter charge as well as engaging in plea negotiations.
The prosecutor’s office said this week it would not refile the case in light of the decision to not refile made by the office under then-Prosecutor Peter Carlisle, now Honolulu mayor. Keith Kaneshiro succeeded Carlisle as prosecutor.
“We don’t want to second-guess the decision that the office under Carlisle made,” said Dave Koga, spokesman for Kaneshiro’s office.
Eddins said earlier in the week he thought the chance of charges being refiled against Baccam would be “highly improbable.”
http://www.staradvertiser.com/2011/07/14/hawaii-news/whatever-happened-to/charges-not-refiled-against-farmer-who-shot-thief-dead/
http://archives.starbulletin.com/2004/10/13/news/story5.html
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If I were on that jury I would acquit, unless there was some kind of crazy unmentioned circumstance that the homeowner had some kind of criminal intent going on. I don't give a rip what Hawaii law says, Hawaii law is dead wrong and against the lawful citizen.
NOT GUILTY
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If I were on that jury I would acquit, unless there was some kind of crazy unmentioned circumstance that the homeowner had some kind of criminal intent going on. I don't give a rip what Hawaii law says, Hawaii law is dead wrong and against the lawful citizen.
NOT GUILTY
I think that's exactly the reason why they didn't bring the case to court, even though he's likely guilty under hawaii law. People were livid that he was potentially going to jail for murder, and chances are most people would side with the farmer instead of voting according to the letter of the law. Acquittal would set a "dangerous" precedent that flies directly in the face of hawaii law, making the entire system lose credibility and appear foolish. Instead of sweeping these types of cases under the rug or arresting homeowners and making them jump through legal hoops to avoid jail, they need to FIX the hawaii law.
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Was reading the comment on HNN and was pleasantly surprised at the responses supporting the homeowner. Many of the comments were misinformed, but good to see people are seemingly seeing the light, getting tired of being vulnerable without means to protect themselves, etc.
Lots of reasons why shooting someone in the back would be justified. To me, things are simple. If the guy didn’t break into the property, he wouldn’t have gotten shot.
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I just like how the cops tell people things like "don't resist", let them violate you, your family and take and your property, and hopefully you wont get hurt. No you're not allowed to carry and defend yourself in public, and can only do so in private under certain circumstances. YET they follow an entirely different set of rules...
Hows about when cops are about to enter a potentially dangerous situation, they put their guns in the car trunk? When some crazy homeless person assaults them, they curl up into a fetal position and let the assailant do what they please? Simply applying the same circumstances and how the public is expected to behave to other, more privileged individuals just shows the hypocrisy of the laws and how much they've trodden on our 2A rights.
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Hmmm... Two unknown male adults wearing a mask in your home... let me think about that one. What if it was Santa just delivering presents? </sarc off>
NOT. GUILTY.
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Hmmm... Two unknown male adults wearing a mask in your home... let me think about that one. What if it was Santa just delivering presents? </sarc off>
NOT. GUILTY.
The saying "play stupid games, win stupid prizes" is oh so fitting in this case. Like I said above, it's really quite simple, at least in my mind. Don't go where you don't belong. If you do, you accept the consequences of that action and what's coming to you. Yeah, I get that the law isn't that simple, but. . .
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If I were on that jury I would acquit, unless there was some kind of crazy unmentioned circumstance that the homeowner had some kind of criminal intent going on. I don't give a rip what Hawaii law says, Hawaii law is dead wrong and against the lawful citizen.
NOT GUILTY
I wonder if any prospective jurists have ever been asked what their views on self-defense are? Or if they are firearms owners.
When I last served, it was a unauthorized operation of a motorized vehicle (aka driving a stolen car). They asked the pool if anyone had their car stolen previously, to which I responded that I did. The judge asked if I could be impartial and I said I could (I actually ended up getting more from insurance than I paid for it). Both sides asked me questions, but to my surprise, the defense went after three others.
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My wife ends up on jury duty quite a bit. The attorneys always try to find someone who can be impartial first and hear out the details before making a decision.
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Surprised the media hasnt done an interview with the "victims" family. I can only imagine the heartbreaking story of how he was trying to provide for his family. All he wanted was to steal a TV and not harm anyone.
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Surprised the media hasnt done an interview with the "victims" family. I can only imagine the heartbreaking story of how he was trying to provide for his family. All he wanted was to steal a TV and not harm anyone.
he's a good boi! only gets a felony arrest sometimes, has a big heart and makes ppl laff, lets loose the heartiest chee hoo after only a 12 pack green bottles, loves his 3 kids from 2 different mamas and only occasionally beats them up, collects welfare as hard as can, but no can afford to buy 65" tv for kids ps4, etc.
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My wife ends up on jury duty quite a bit. The attorneys always try to find someone who can be impartial first and hear out the details before making a decision.
I’ve heard that engineers are often eliminated because we tend to see things in black and white, which is mostly the case for me. I wasn’t the only one though, at least in the last jury I was in. The group had to get clarification on what exactly reasonable doubt is. Reasonable left a LOT of room for judgement in this particular case as the prosecution”s case was pretty much “liar, liar, pants on fire”.
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Surprised the media hasnt done an interview with the "victims" family. I can only imagine the heartbreaking story of how he was trying to provide for his family. All he wanted was to steal a TV and not harm anyone.
They ambulance chaser attorney probably told them not to do interviews.
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Its important to look at the notes and the commentary after the law itself, It has been re-summarized to make it easier/clearer to understand.
It occurred outside the persons home, and the home owner had other options (retreat into the home) then deadly force. By approaching and saying he has a gun the home owner provoked the situation causing the need for deadly force. Both of which nolify the use of deadly force in Hawaii (not saying agree but the law seems pretty clear)
A couple of issues.
I didn't see anywhere in the commentary a definition for home. I think a legal argument could be made that a persons small enclosed back yard is part of his home. No way to tell how a jury would vote on that.
The second issue is that I don't think saying he has a gun constitutes provoking the situation. As I read the law on use of force, provoking to me appears to be situations where an individual instigated a fight. For example, I punch you then you beat me up. I provoked the fight and I can't use deadly force against you. Him announcing to likely burglars that he has a gun is not provoking a deadly force situation because he isn't instigating violence and he isn't doing anything unreasonable or illegal. Him announcing he has a weapon does not provoke violence upon himself.
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I just like how the cops tell people things like "don't resist", let them violate you, your family and take and your property, and hopefully you wont get hurt. No you're not allowed to carry and defend yourself in public, and can only do so in private under certain circumstances. YET they follow an entirely different set of rules...
Hows about when cops are about to enter a potentially dangerous situation, they put their guns in the car trunk? When some crazy homeless person assaults them, they curl up into a fetal position and let the assailant do what they please? Simply applying the same circumstances and how the public is expected to behave to other, more privileged individuals just shows the hypocrisy of the laws and how much they've trodden on our 2A rights.
I bet most cops were giving high fives (figuratively) to the homeowner.
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I bet most cops were giving high fives (figuratively) to the homeowner.
I'd agree, but what cops feel personally differs from HPD and hawaii law standpoint. Similar to how a lot of the cops working firearms registration are generally cool, but must enforce hawaii law.
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I bet most cops were giving high fives (figuratively) to the homeowner.
did you?
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I bet most cops were giving high fives (figuratively) to the homeowner.
If this happened in Lubbock TX the Sheriff would probably ask you how many rounds you fired so he can replace them.
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A couple of issues.
I didn't see anywhere in the commentary a definition for home. I think a legal argument could be made that a persons small enclosed back yard is part of his home. No way to tell how a jury would vote on that.
The second issue is that I don't think saying he has a gun constitutes provoking the situation. As I read the law on use of force, provoking to me appears to be situations where an individual instigated a fight. For example, I punch you then you beat me up. I provoked the fight and I can't use deadly force against you. Him announcing to likely burglars that he has a gun is not provoking a deadly force situation because he isn't instigating violence and he isn't doing anything unreasonable or illegal. Him announcing he has a weapon does not provoke violence upon himself.
The CCW course I took in Florida stressed that once you mentioned that you have a gun or display one, you now become the aggressor.
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If this goes to trial, we will finally have a definition of "residence".
Sent from my SM-G920V using Tapatalk
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The CCW course I took in Florida stressed that once you mentioned that you have a gun or display one, you now become the aggressor.
When did you take your FL CCW class? A new law (nicknamed The Warning Shot Law) was signed by the FL Governor in June 2014.
It does amend Chapter 776, F.S. and specifies that the use of deadly force justifications contained therein apply to
threatened uses of force as well as actual uses of force. It is really about the broader area of Self Defense and the
use of deadly force. It allows for the threatened use of force without falling under the rule of Florida’s “10-20-Life”
law, which many believe was not intended to be used in self defense cases. What the new bill and impending law
does is to make it legal in the state of Florida for one to effectively display a weapon as a threat in a self-defense
situation IF proper justifications are met.
https://www.usacarry.com/threaten-use-deadly-force-fire-warning-shots/
Floridians who fire a warning shot or threaten to use a gun could avoid criminal prosecution under a law signed
Friday by Gov. Rick Scott.
http://www.tallahassee.com/story/news/politics/2014/06/21/gov-rick-scott-signs-warning-shot-bill/11204137/
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Warning shot law? Wow! ???
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A warning shot is a waste of ammo.
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A warning shot is a waste of ammo.
Not if the warning shot is center mass. :wave:
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A warning shot is a waste of ammo.
warning shot = translation for a miss
I hit 3 out of 4 shot? Yeah, that one that I didn't hit was a warning :wave:
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When did you take your FL CCW class? A new law (nicknamed The Warning Shot Law) was signed by the FL Governor in June 2014.
https://www.usacarry.com/threaten-use-deadly-force-fire-warning-shots/
http://www.tallahassee.com/story/news/politics/2014/06/21/gov-rick-scott-signs-warning-shot-bill/11204137/
Me thinks the warning shot is a great idea..... shoot the SOB dead first then fire the warning shot.... :thumbsup:
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I think the FL warning shot law was passed after a woman fired a warning shot in her home. She had a stalker and had a TRO on the guy. He was outside in his car watching many her times. He broke into the home one day and she fired into the ceiling and he ran. She was arrested and faced many years behind bars (IIRC 20 years).
This was shortly after the good kid Trayvon Martin was shot by Zimmerman.
So apparently she didn't articulate well why she fired, and she should have shot him instead. Now he knows she has a gun, which she didn't have before he was stalking her. And might come back with a weapon.
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Ok here is a situation tell me how you would respond. You come out of a 7/11 when you are accosted be an individual that is asking for a couple of dollars to buy coffee. You decline to give money and try to side step the individual. No matter which way you decide to move away from that person, he or she decides to block your way and continues to ask for money. No weapon is displayed by either party. You have one on your person but you don't know if the other person has also. You feel very uncomfortable and tense and you think the situation is perhaps escalating. What would you do. I'm not going to list any choices for the purpose of seeing what your mind set is.
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Ok here is a situation tell me how you would respond. You come out of a 7/11 when you are accosted be an individual that is asking for a couple of dollars to buy coffee. You decline to give money and try to side step the individual. No matter which way you decide to move away from that person, he or she decides to block your way and continues to ask for money. No weapon is displayed by either party. You have one on your person but you don't know if the other person has also. You feel very uncomfortable and tense and you think the situation is perhaps escalating. What would you do. I'm not going to list any choices for the purpose of seeing what your mind set is.
With only that info provided, first is get separation/space. Beyond that, depends on how the person responds and general assessment of the person. Are they a tiny old lady? Are they a heftier person?
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Ok here is a situation tell me how you would respond. You come out of a 7/11 when you are accosted be an individual that is asking for a couple of dollars to buy coffee. You decline to give money and try to side step the individual. No matter which way you decide to move away from that person, he or she decides to block your way and continues to ask for money. No weapon is displayed by either party. You have one on your person but you don't know if the other person has also. You feel very uncomfortable and tense and you think the situation is perhaps escalating. What would you do. I'm not going to list any choices for the purpose of seeing what your mind set is.
You treat the person as you would if you were not armed ... until you feel the threat has increased to where you're at risk of death or severe bodily injury. Feeling "uncomfortable and tense" isn't the standard for use of deadly force.
I'd tell the person to leave, and then threaten to call the police. If he persists, call 911. I might even take a picture or start video recording to have evidence of the confrontation, just in case I need to prove who did what. I'd stay alert to my surroundings and not hyper-focused on the one individual, just in case he's not alone.
At no point in the situation described would I threaten the person with my firearm, either verbally or by showing it. Concealed firearms should only be brandished in public as a last resort and in response to a perceived threat to your person.
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A warning shot is a waste of ammo.
Especially with our neutered magazines. Don't waste ammo.
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Ok here is a situation tell me how you would respond. You come out of a 7/11 when you are accosted be an individual that is asking for a couple of dollars to buy coffee. You decline to give money and try to side step the individual. No matter which way you decide to move away from that person, he or she decides to block your way and continues to ask for money. No weapon is displayed by either party. You have one on your person but you don't know if the other person has also. You feel very uncomfortable and tense and you think the situation is perhaps escalating. What would you do. I'm not going to list any choices for the purpose of seeing what your mind set is.
Go back inside and call the police. No deadly force is needed until your life is in immediate danger. The courts have ruled even if a bigger guy is yelling at a smaller woman, no physical force has been applied or shown yet (California road rage example, guy gets out and yells at female while she is inside her car). She shot him and was found guilty. She could have rolled up her window or drove off. He was not blocking her car with his car.
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Also if this goes to trial, then Hawaii's crappy castle law might end up getting updated. Nevada just updated theirs. Now inside your vehicle (non-mobile home) is an extension of your castle. So if someone jumps in the passenger seat and forces you to drive somewhere, you can shoot without being liable civilly as well.
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All the homeowner has to do is say that the trespasser "moved a hand toward the area of his waistband", thus initiating the lawful use of lethal force. Everything's hunky-dory then. See:
"When officers arrived at the scene, Finch opened the door for the officers. As police told him to put his hands up, Finch moved a hand toward the area of his waistband - a common place where guns are concealed. An officer, fearing the man was reaching for a gun, fired a single shot. Finch died a few minutes later at a hospital and was found to be unarmed, Livingston said."
http://www.foxnews.com/us/2017/12/30/kansas-swatting-suspect-arrested-in-los-angeles.html
Oh, wait, THAT'S THE RULES FOR COPS who SWAT some guy as a result of a prank call. Completely innocent 28-year-old father of two young children opens the door from inside his own home, as he's ordered to put his hands up, one of them apparently moves in a direction meriting death, bang, he's dead. He was unarmed. Cop walks. Next. (Put your hands down at your sides in a normal standing position, now start to raise them, you'll notice that they "move toward your waistband" unless you're some kind of weirdo who "raises their hands" by sticking your arms straight out to the front or sides... I've never seen anyone do that... I'm just sayin'...).
I guess an ordinary citizen anywhere wouldn't be able to use that justification, much less one in Hawaii. Too bad.
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All the homeowner has to do is say that the trespasser "moved a hand toward the area of his waistband", thus initiating the lawful use of lethal force. Everything's hunky-dory then. See:
"When officers arrived at the scene, Finch opened the door for the officers. As police told him to put his hands up, Finch moved a hand toward the area of his waistband - a common place where guns are concealed. An officer, fearing the man was reaching for a gun, fired a single shot. Finch died a few minutes later at a hospital and was found to be unarmed, Livingston said."
http://www.foxnews.com/us/2017/12/30/kansas-swatting-suspect-arrested-in-los-angeles.html
Oh, wait, THAT'S THE RULES FOR COPS who SWAT some guy as a result of a prank call. Completely innocent 28-year-old father of two young children opens the door from inside his own home, as he's ordered to put his hands up, one of them apparently moves in a direction meriting death, bang, he's dead. He was unarmed. Cop walks. Next. (Put your hands down at your sides in a normal standing position, now start to raise them, you'll notice that they "move toward your waistband" unless you're some kind of weirdo who "raises their hands" by sticking your arms straight out to the front or sides... I've never seen anyone do that... I'm just sayin'...).
I guess an ordinary citizen anywhere wouldn't be able to use that justification, much less one in Hawaii. Too bad.
I think a citizen should be able to articulate it but an attorney would likely point out that an LEO has training etc.
In the Ewa beach situation like any other it is obviously dynamic (cue in Magpul videos). The media oversimplified the suspects as trespassers wearing black masks - as if that is not unusual. Halloween was 2 months ago. Who knows what these "trespassers" were carrying and when they were wearing black masks can anyone tell at night whether they were facing you or not?
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I think a citizen should be able to articulate it but an attorney would likely point out that an LEO has training etc.
In the Ewa beach situation like any other it is obviously dynamic (cue in Magpul videos). The media oversimplified the suspects as trespassers wearing black masks - as if that is not unusual. Halloween was 2 months ago. Who knows what these "trespassers" were carrying and when they were wearing black masks can anyone tell at night whether they were facing you or not?
Don't forget it was one against two, maybe more. That alone means the homeowner needs to employ a different threat assessment mentality. Normally, you want to neutralize one first so the odds are more even. Don't give them the chance to come at you at once. Whoever makes the first threatening move towards you draws the short straw.