State v. Reis.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-FEB-2025
08:41 AM
Dkt. 174 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Plaintiff-Appellee, v.
BRANDON REIS, Defendant-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)

FEBRUARY 27, 2025

LEONARD, ACTING CHIEF JUDGE, HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

Brandon Reis was indicted for Attempted Murder in the

Second Degree, among other crimes. He claimed he was defending

himself. A jury found him guilty as charged. He contends the

jury was erroneously instructed — based on Hawai#i Standard Jury

Instructions Criminal (HAWJIC) 7.01A — that use of deadly force

in self-defense must be "immediately necessary." We hold, based

on the plain language and legislative history of Hawaii Revised

Statutes (HRS) § 703-304 (2014), that the challenged instruction
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

was erroneous. There was a reasonable possibility the error

contributed to Reis's conviction. The evidence was sufficient to

support the verdict. Accordingly, we vacate the August 29, 2019

Judgment of Conviction and Sentence entered by the Circuit Court

of the First Circuit1 and remand for a new trial.

I. BACKGROUND

A grand jury indicted Reis for (1) Attempted Murder in

the Second Degree;2 (2) Carrying or Use of Firearm in the

Commission of a Separate Felony;3 (3) Ownership or Possession

Prohibited of any Firearm or Ammunition by a Person Convicted of

Certain Crimes;4 (4) Place to Keep Pistol or Revolver;5 and

(5) Ownership or Possession Prohibited of any Firearm or

Ammunition by a Person Indicted for Certain Crimes6. The

indictment was based on alleged events of June 22, 2016.

Reis stipulated to these facts before trial:

On January 28, 2002, [Reis] was convicted of a felony.

On January 29, 2013, [Reis] was under indictment for a
felony.

On June 22, 2016, [Reis] knew that he had been convicted of
a felony.
On June 22, 2016, [Reis] knew that he was under indictment
for a felony.

1
The Honorable Karen T. Nakasone presided.
2
HRS §§ 705-500 (2014), 707-701.5 (2014), and 706-656 (2014).
3
HRS § 134-21 (2011).
4
HRS § 134-7(b), (h) (2011).
5
HRS § 134-25 (2011).
6
HRS § 134-7(b), (h).

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On June 22, 2016, [Reis] did not have a license to carry a
pistol, revolver, or ammunition on his person issued by the
Chief of Police for the City and County of Honolulu, State
of Hawai#i.
On June 22, 2016, [Reis] did not have a firearm registered
to him.

Reis did not stipulate he carried, used, owned, or

possessed a firearm or ammunition on June 22, 2016.

Trial began on October 23, 2018. Reis did not testify,

but argued he acted in self-defense. A jury found him guilty as

charged on all counts. The trial court dismissed counts 4 and 5

based on merger. Reis was sentenced to life with the possibility

of parole on count 1 (attempted murder), 20 years on count 2 (use

of firearm), and 10 years on count 3 (possession of firearm), to

be served concurrently. This appeal followed.7

II. POINTS OF ERROR

Reis states five points of error: (1) the

Tachibana/Torres colloquy8 was inadequate; (2) the jury was

instructed that use of deadly force in self-defense must be

"immediately necessary"; (3) the trial court refused to give his

7
Disposition of this appeal was significantly delayed because of
two defaults in filing the opening brief, three remands to the circuit court
for appointment of substitute counsel for Reis, an extension of time to file
transcripts, and several extensions of time to file the opening brief
requested by Reis's new court-appointed appellate counsel.
8
See Tachibana v. State, 79 Hawai#i 226, 236, 900 P.2d 1293, 1303
(1995) ("[W]e hold that in order to protect the right to testify under the
Hawai#i Constitution, trial courts must advise criminal defendants of their
right to testify and must obtain an on-the-record waiver of that right in
every case in which the defendant does not testify.") (footnote omitted);
State v. Torres, 144 Hawai#i 282, 294–95, 439 P.3d 234, 246–47 (2019) ("[W]e
hold that trial courts are required to engage in an on-the-record colloquy
with a defendant when the defendant chooses to testify to ensure that a waiver
of the right not to testify is knowing, intelligent, and voluntary.").

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proposed jury instruction on ignorance or mistake of fact;

(4) the trial court denied his motion in limine to preclude Kyen

Knowles's girlfriend from testifying about her telephone

conversation with Knowles; and (5) the trial court denied his

motion for judgment of acquittal based on insufficient evidence.

Points (2) and (5) are dispositive.

III. STANDARDS OF REVIEW

A. Jury Instructions

The jury instruction at issue was proposed by Reis.

But "the duty to properly instruct the jury lies with the trial

court[.]" State v. Nichols, 111 Hawai#i 327, 335, 141 P.3d 974,

982 (2006). "Where instructions were not objected to at trial,

if the [defendant] overcomes the presumption that the

instructions were correctly stated, the rule is that such

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." Id. at 334-35, 141

P.3d at 981-82.
B. Sufficiency of Evidence

We consider the evidence in the strongest light for the

prosecution when reviewing its legal sufficiency to support a

conviction. State v. Sheffield, 146 Hawai#i 49, 53, 456 P.3d

122, 126 (2020). "The test on appeal is not whether guilt is

established beyond a reasonable doubt, but whether there was

substantial evidence to support the conclusion of the trier of

fact." Id.

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IV. DISCUSSION

A. The jury instruction on use of deadly force
in self-defense was erroneous.

(1) Reis claimed he acted in self-defense when he

fired a gun in Knowles's direction. He contends the jury was

erroneously instructed that use of deadly force in self-defense

must be "immediately necessary."

HRS § 703-304 provides, in relevant part:

(1) Subject to the provisions of this section and of
section 703-308 [concerning use of force to prevent suicide
or the commission of a crime], 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.

(Emphasis added.)

The jury instruction at issue stated:

The use of deadly force upon or toward another person is
justified if the defendant reasonably believes that deadly
force is immediately necessary to protect himself on the
present occasion against death or serious bodily injury or
kidnapping. The reasonableness of the defendant's belief
that the use of protective deadly force was immediately
necessary shall be determined from the viewpoint of a
reasonable person in the defendant's position under the
circumstances of which the defendant was aware or as the
defendant reasonably believed them to be when the deadly
force was used.

(Emphasis added.)

The instruction was modified from HAWJIC 7.01A, which

states, in relevant part:

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The use of deadly force upon or toward another person is
justified if the defendant reasonably believes that deadly
force is immediately necessary to protect himself/herself on
the present occasion against [death] [serious bodily injury]
[kidnapping] [rape] [forcible sodomy]. The reasonableness
of the defendant's belief that the use of protective deadly
force was immediately necessary shall be determined from the
viewpoint of a reasonable person in the defendant's position
under the circumstances of which the defendant was aware or
as the defendant reasonably believed them to be when the
deadly force was used.

(Emphasis added.)

Reis cites In re DM, 152 Hawai#i 469, 526 P.3d 446

(2023), where the supreme court noted:

Hawai#i Standard Jury Instructions, Criminal (HAWJIC) 7.01A
misstates HRS § 703-304(2). For deadly force cases, it adds
the adverb "immediately."

Id. at 477 n.13, 526 P.3d at 454 n.13. But cf. State v. DeLeon,

131 Hawai#i 463, 487, 319 P.3d 382, 406 (2014) (stating that "the

jury instruction that the circuit court provided was based on

then-current HAWJIC 7.01, which this court has upheld as 'fully

consonant with the controlling statutory and case law of this

state.'" (footnote omitted) (quoting State v. Augustin, 101

Hawai#i 127, 127, 63 P.3d 1097, 1097 (2002)). The part of HAWJIC

7.01A at issue here is the same as the corresponding part of

HAWJIC 7.01. But neither DeLeon nor Augustin involved the

"necessary vs. immediately necessary" deadly force issue.

In re DM was a family court case involving a juvenile

defendant (where there is no jury) so jury instructions were not

at issue. "'Obiter dictum' is '[a] judicial comment made while

delivering a judicial opinion, but one that is unnecessary to the

decision in the case and therefore not precedential (although it

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may be considered persuasive).'" State v. Hussein, 122 Hawai#i

495, 533, 229 P.3d 313, 351 (2010) (Moon, C.J., concurring in

part and dissenting in part) (quoting Black's Law Dictionary 1102

(8th ed. 2004)). We are not bound by In re DM footnote 13. Nor

are we bound by DeLeon or Augustin, because neither decided the

"necessary vs. immediately necessary" issue.

We hold that the self-defense instruction given to the

jury misstated the plain language of HRS § 703-304(2), and was

contrary to legislative intent. When we interpret a statute, we

start with "the language of the statute itself." Barker v.
Young, 153 Hawai#i 144, 148, 528 P.3d 217, 221 (2023). "[W]here

the statutory language is plain and unambiguous, our sole duty is

to give effect to its plain and obvious meaning."9 Id. The

plain language of HRS § 703-304(2) justifies a person's use of

deadly force if the person reasonably10 "believes that deadly

force is necessary to protect [themself] against death, serious

bodily injury, kidnapping, rape, or forcible sodomy." The adverb

"immediately" does not modify the adjective "necessary" in

subsection (2) of the statute, but it did in the deadly-force

jury instruction.

"[T]he trial court is not required to instruct the jury

in the exact words of the applicable statute but to present the

jury with an understandable instruction that aids the jury in

9
This canon ensures that members of the public can read a statute
and conform their conduct according to its plain language, without having to
read legislative committee reports or conduct other legal research.
10
For purposes of HRS § 703-304, "believes" means "reasonably
believes." HRS § 703-300 (2014).

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applying that law to the facts of the case." State v. Metcalfe,

129 Hawai#i 206, 230, 297 P.3d 1062, 1086 (2013). That leads us

to ask: Why did the legislature omit the word "immediately" from

HRS § 703-304(2)? To find the answer, we may refer "to extrinsic

aids in determining legislative intent, such as legislative

history[.]" Barker, 153 Hawai#i at 148, 528 P.3d at 221.

The legislative history reveals the reason for the

omission and confirms our plain-language analysis. In 1975, HRS

§ 703-304(2) did not contain the word "immediately." That was a

subject of S.B. No. 516 (1975), introduced to amend various

sections of the Hawai#i Penal Code. The senate bill proposed

adding the word "immediately" to subsection (2):

(2) The use of deadly force is justifiable under
this section if the actor believes that deadly force is
immediately necessary to protect himself against death,
serious bodily injury, kidnapping, rape, or forcible sodomy.

S.B. No. 516, S.D.1 at 3, 8th Leg., Reg. Sess. (1975).

The Senate Judiciary Committee explained:

Section 703-704 [sic] was amended for purposes of
clarification. At present, subsection (1) requires that the
actor believe that the use of defensive force is immediately
necessary. In subsection (2) the word "immediately" is
absent. This has given rise to the contention that for
deadly defensive force to be used, the defendant need not
believe that the use of deadly force was immediately
necessary to protect himself. This contention is erroneous
but plausible because of the absence of the word
"immediately" in subsection (2). Therefore, the amendment
is necessary.

S. Stand. Comm. Rep. No. 590, in 1975 Senate Journal, at 1057.

The House Judiciary Committee disagreed:

Your Committee . . . made the following changes to
S.B. No. 516, S.D.1.

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1. The word "immediately" on Page 3 of the bill was
deleted. Adding the requirements that a person being
attacked determine the immediacy of the need to use
deadly force presents to [sic] great a burden upon
that person. Such a person is already forced into a
position of fear and apprehension that would make a
reasoned determination of immediacy impossible.

H. Stand. Comm. Rep. No. 720, in 1975 House Journal, at 1306-07.

The Senate disagreed with the House draft. A conference

committee was appointed. The conference draft kept the House's

change. The adverb "immediately" remained missing from

subsection (2).

The State argues the jury instruction is supported by

the Model Penal Code, and a ruling that the instruction was

erroneous would lead to absurd results. Those arguments are not

persuasive given the clear legislative intent to differentiate

the justification for use of deadly force to protect against

specific harms and offenses — death, serious bodily injury,

kidnapping, rape, or forcible sodomy — from use of force in

general to protect against any unlawful force.11

We hold that use of the adverb "immediately" before the

adjective "necessary" in the deadly-force instruction was

contrary to the plain language of HRS § 703-304(2) and the

legislature's intent to omit the adverb, and was thus error.

HAWJIC 7.01A misstates the law in that respect, and should no

longer be used by our trial courts.

11
"Unlawful force" means "force which is employed without the
consent of the person against whom it is directed and the employment of which
constitutes an offense or would constitute an offense except for a defense not
amounting to a justification to use the force. Assent constitutes consent,
within the meaning of this section, whether or not it otherwise is legally
effective, except assent to the infliction of death or serious or substantial
bodily injury." HRS § 703-300.

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(2) "[O]nce instructional error is demonstrated, we

will vacate, without regard to whether timely objection was made,

if there is a reasonable possibility that the error contributed

to the defendant's conviction[.]" Nichols, 111 Hawai#i at 337,

141 P.3d at 984. Reis did not testify, so the jury had to

consider other evidence to determine whether "a reasonable person

in [Reis's] position under the circumstances of which [Reis] was

aware or as [Reis] reasonably believed them to be" would believe

"that the use of protective deadly force was immediately

necessary[.]"

The evidence showed that Reis was part of a group of

men who argued with Knowles at a Kalihi fast food restaurant.

Someone challenged someone to fight. But there was no fight, and

everyone left. State's Exhibit 1, footage from a surveillance

camera at a business on Waterhouse Street in Kalihi, showed what

happened about an hour and a half later. A red car comes down

Waterhouse Street and parks on the far side. A silver Lexus

appears. A male — allegedly Reis — gets out of the red car as

the Lexus is parking on the near side. The male starts crossing

Waterhouse Street and appears to remove an object from his

shoulder bag. The Lexus reverses out of its parking space,

turning as if to continue down Waterhouse Street. Without

breaking stride, the male walks around the reversing Lexus,

raises his right arm, points it at the Lexus, and appears to fire

a shot into the rear passenger door toward the driver, later

identified as Knowles. Knowles opens the door while the Lexus is

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still moving backwards, gets out, and is hit by the open door.

Knowles falls and is pinned under the left front wheel. The

person alleged to be Reis walks around the front of the Lexus and

looks at Knowles, who is pinned under the wheel and flailing his

legs. Reis runs to the red car and leaves. This all happens in

about 30 seconds.

The defense argued that Knowles had followed Reis to

Waterhouse Street:

A car coming towards him, driven by the man who had called
him and -- Brandon and his friends out, the 5-foot-10,
256-pounder, which we know Brandon is not that size, who
bragged that he could roll with the best of them, had
followed Brandon for an hour and a half. He was scared.
Couldn't retreat. It was too late. Brandon -- Knowles did
not give Brandon the chance to retreat when he suddenly
reversed towards him.

Think about it. When you think about it from
Brandon's point of view, the car was coming right at him.
Just showing the gun didn't stop him. So he had to choose
between firing a warning shot or risk being run over and
attacked. And only when the Lexus was almost on him, Brian
fired -- I mean, Brandon fired once. And it was an
understandable choice, given the situation that Knowles had
placed him in.

The State argued:

When you use deadly force, it must be immediately necessary,
not in 30 seconds, not in a minute, not in ten seconds.
That moment. You cannot use a gun and shoot at somebody
unless it is immediately necessary. Essentially you have to
have no other choice but then to shoot this person or shoot
at this person.

A jury could have found, based on the evidence, that

although Reis's use of deadly force may not have been immediately

necessary, Reis could reasonably have believed it was necessary

to use deadly force to protect himself against death or serious

bodily injury posed by a physically intimidating person with whom

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he had argued, and who had been following him for an hour and a

half. There was a reasonable possibility the error contributed

to Reis's conviction.

B. There was substantial evidence to support the
verdict.

The double jeopardy clause of article I, section 10 of

the Hawai#i Constitution requires that we address Reis's claim of

insufficiency of the evidence before remanding for a new trial

because of trial error. Sheffield, 146 Hawai#i at 61, 456 P.3d

at 134.

We acknowledge that Reis challenges the denial of his

motion in limine to preclude hearsay testimony from Knowles's

girlfriend. She spoke to Knowles on the phone during the

argument at the fast food restaurant. Knowles described the

person he was arguing with; the description matched Reis. Even

without considering that testimony, the evidence was sufficient

to support the verdict.

A person commits the offense of Attempted Murder in the

Second Degree if the person intentionally engages in conduct

which, under the circumstances as the person believes them to be,

is a substantial step to intentionally or knowingly cause the

death of another person. HRS §§ 705-500(1)(b), 707-701.5(1).

State's Exhibit 1 (the surveillance video) shows a person alleged

to be Reis raising his arm and firing what appears to be a pistol

toward Knowles's Lexus. A police officer who had previous

contacts with Reis identified him and his red car as appearing in

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State's Exhibit 1. A witness testified she found an object that

"looked like a casing of some kind" in the middle of Waterhouse

Street the evening of the incident, and reported it to the

police. An HPD evidence specialist recovered the bullet casing

where the incident occurred. An HPD criminalist identified

gunshot residue found on Knowles's Lexus. This evidence, and the

reasonable inferences that could be drawn from it, considered in

the strongest light for the prosecution, was sufficient to

support the verdict.

V. CONCLUSION

The jury was erroneously instructed that use of deadly

force in self-defense must be "immediately necessary." There was

a reasonable possibility the error contributed to Reis's

conviction. The evidence and the reasonable inferences that

could be drawn from it, considered in the strongest light for the

prosecution, was sufficient to support the verdict. The

August 29, 2019 Judgment of Conviction and Sentence is vacated,

and this case is remanded for a new trial.

On the briefs:
/s/ Katherine G. Leonard
Dwight C.H. Lum, Acting Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Robert T. Nakatsuji, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge

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