Petition — McNulty v. Hawaii

Supreme Court, U.&

FILED

MAR 28 1979

CIGAR RODAK, JR., CLERK

In the Supreme Court

OF THE

United States

Octoser Term, 1978

No.

78-1489

DonaLtp Aneus MoNutry, Petitioner,

vs.

State or Hawau, Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Supreme Court of the State of Hawaii

Davw C. ScHUTTER

567 South King Street

Kawaiahao Plaza

Penthouse/Parking Annex

Honolulu, Hawaii 96813

Telephone: (808) 524-4600

Attorney for Petitioner

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © &.F.,CA 94111 © (415) 981-7882

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A. Critical and persuasive evidence deliberately withheld

Or ss 88 is ons dn eect.

B. Incompetent withdrawal of instruction on the burden of

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TABLE OF AUTHORITIES CITED

Cases

Page

Corsa v. Anderson, 22 Crim. L.Rptr. 2402 (U.S.D.C. Mich.

DUE es i A Chek twis diene Racks chick Re eee 10

Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed.2d 508, 95 S.Ct.

1881 Rr i oe io wn Pada 6 «ine seGMN ee te 6, 7, 8,9

Radio Station WOW v. Johnson, 326 U.S. 120, 65 S.Ct. 1475,

I no a re

In Re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068

Ce Ue Se eee en Pe ee ee 7

Constitution

United States Constitution:

en ie a ee al | 2

Pomreants Rane ondsd. bs dco ols w. Srisecnce... 10

Fourteenth Amendment, Section] ...................... 2

Statutes

PPT I II ong oa Pua mh Os cao coke vaca ds 1

ot ew cnreree wee =~

In the Supreme Court

OF THE

United States

.

OctToser Term, 1978

No.

DonaLp Ancus McNutry, Petitioner,

vs.

State or Hawan, Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Supreme Court of the State of Hawaii

The Petitioner DONALD ANGUS MeNULTY, respect-

fully prays that a writ of certiorari issue to review the

judgment and opinion of the Supreme Court of the State

of Hawaii, entered in this proceeding on December 28, 1978.

OPINION BELOW

The published opinion of the Hawaii Supreme Court is

attached hereto as Appendix “A”.

JURISDICTION —

The judgment of the Hawaii Supreme Court was entered

on December 28, 1978. The Court’s jurisdiction is invoked

under 28 U.S.C. § 1257(3).

2

QUESTIONS PRESENTED

I. Can Due Process and the Right to a Fair Trial be

satisfied when the trial judge.fails to specifically instruct

the jury as to the State’s burden of disproving self-

defense?

II. Is the Sixth Amendment right to Effective Assist-

ance of Counsel meaningful if the standard of competency

is so low as to condone defense counsel’s waiver of the

State’s burden of disproving self-defense beyond a reason-

able doubt?

Ill. Can the Hawaii Supreme Court circumvent Peti-

tioner’s Sixth Amendment right to Effective Assistance of

Counsel by labelling disastrously inadequate conduct by

defense counsel as a matter of “informed judgment” in-

stead of as constitutionally inadequate preparation?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment XIV, Section 1:

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No state

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

United States Constitution, Amendment V1: In all crim-

inal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State

3

and district wherein the crime shall have been committed,

which district shall have been previously ascertained by

law, and to be informed of the nature and the cause of the

accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for his

defense.

STATEMENT OF THE CASE

I.

Judicial Proceedings

On February 21, 1975, DONALD ANGUS MeNULTY

was accused of murdering DION YANCEY CAGLE two

(2) days earlier. Subsequently, on April 16, 1975, the Oahu

Grand Jury returned an indictment against him alleging

that Petitioner had intentionally and knowingly caused

CAGLE’s death by shooting him. Due to his indigency,

the Court appointed Rodney Kim, a private practitioner, as

counsel for Petitioner. Attorney Kim met with Petitioner

for a total of only two and one-half (2-1/2) hours prior to

the trial of this matter. Trial began thereafter on June 16,

1975. Petitioner never denied that he shot and killed

CAGLE but tendered that he had only done so in self-

defense. On June 19, 1975, the jury returned a verdict of

guilty as charged and on August 18, 1975, the Hawaii Cir-

- euit Court entered judgment in accordance with said ver-

dict and sentenced Petitioner to imprisonment for a period

of twenty (20) years.

On August 22, 1975, Petitioner filed a notice of appeal

to the Hawaii Supreme Court. On September 25, 1975, At-

torney Kim withdrew as appointed counsel and private

4

counsel, undersigned, appeared to handle the appeal. On

October 30, 1975, Petitioner, through his new counsel, filed

a motion for a new trial based on newly discovered evidence

which clearly characterized the decedent as a volatile, vio-

lent and dangerous man. The evidence included admissions

by the decedent to strangling two (2) other persons. That

motion came on for hearing December 19, 1975, and on De-

cember 30, 1975, the Circuit Court entered a written order

denying it. That court found that Mr. Kim, Petitioner’s

appointed counsel, knew of such evidence prior to trial,

that he had communicated it to Petitioner, that Petitioner

had independent knowledge of some of the evidence, and

that, therefore, it was not newly discovered. On January

5, 1976, Petitioner filed an amended notice of appeal to

the Hawaii Supreme Court from the original judgment

and from the order denying his motion for new trial.

Almost three (3) years later, on December 28, 1978, the

Hawaii Supreme Court affirmed both the judgment against

Petitioner and the Court’s order denying his motion for

new trial. The State, on January 16, 1979, filed a motion

for execution of judgment. Petitioner is presently facing

a twenty (20) year prison term.

II.

Facts of the Proceedings

Petitioner’s sole defense to the murder charge was that

his shooting of CAGLE was in self-defense. Specifically,

his defense centered around questions of the decedent’s

propensity towards violence and use of unlawful and

deadly force, and Petitioner’s belief regarding that pro-

pensity. Attorney Kim presented no evidence as to dece-

5

dent’s violent nature other than the Petitioner’s testimony

itself. The theory advanced by the State in its opening

argument was that Petitioner acted out of jealous anger,

fueled by a lover’s triangle.

Two points are clear:

(1) That available evidence substantiating Petitioner’s

claim of decedent’s propensity towards violence, including

an admission by him to strangling two (2) other persons,

would certainly have been persuasive in Petitioner’s de-

fense; and

(2) That a jury instruction explaining the prosecution’s

burden. of proof beyond a reasonable doubt that Petitioner

did not act in self-defense was critical.

A. Critical and Persuasive Evidence Deliberately With-

held by Defense Counsel

For some unexplained, and, frankly, unimaginable rea-

son, Attorney Kim failed to offer the testimony of

CAGLE’s former attorney, Mr. Hobler, which indepen-

dently verified CAGLE’s violent personality. In an affidavit

in support of Petitioner’s motion for new trial, Mr. Hobler

set forth the following facts to which he was ready and

willing to testify:

a. Throughout his relationship with CAGLE, CAGLE

demonstrated extremely aggressive and impulsive qualities ;

b. CAGLE frequently admitted to lack of self control

while under the influence of alcohol, resulting in numerous

altercations witb his fists, clubs, and knives;

ce. CAGLE said he was not afraid of anyone and that,

while in prison for armed robbery, not even the toughest

6

convict would cross his path out of fear/respect for

CAGLE’s physical prowess;

d. CAGLE had threatened both Hobler’s secretary and

Hobler’s wife, and had even threatened Hobler himself in

a letter which was attached to Hobler’s affidavit;

e. CAGLE admitted to attempting to choke a woman;

f. CAGLE gave a stenographic confession, which was

also attached to Hobler’s affidavit, the truth of which he

independently admitted to Hobler, wherein he stated that

he intentionally strangled two (2) persons.

It must be emphasized that the only evidence Attorney

Kim offered at trial regarding CAGLHE’s extremely violent

tendencies was the testimony of Petitioner himself. Attor-

ney Kim was aware of the facts as set forth above and yet

failed to present such obviously relevant, material and per-

suasive testimony by the decedent’s former attorney. The

Hawaii Supreme Court has blindly characterized this

failure on Attorney Kim’s part as a matter of informed

judgment not to be second guessed on appeal.

B. Incompetent Withdrawal of Instruction on the

Burden of Proof Re: Self-Defense

Since Petitioner’s only defense was self-defense, an in-

struction as to the prosecution’s burden of proof beyond

a reasonable doubt that Petitioner did not act in self-

defense was mandatory. Clearly, the possibility exists that

jurors were misled by the court’s failure to explain this

rather confusing concept. The Hawaii Supreme Court ad-

mits as much. That the concept is one to be reckoned with

has been emphasized in decisions by this Honorable Court.

See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed.2d

7

508, 95 S.Ct. 1881 (1975); In Re Winship, 397 U.S. 358,

25 L.Ed.2d 368, 90 S.Ct. 1068 (1970). In In Re Winship,

supra, this Court held that Due Process required the State

to prove beyond a reasonable doubt each and every element

of the offense charged. Mullaney v. Wilbur, supra, clarified

this constitutional requirement by explicitly requiring the

State to disprove defenses which negated any element of

the crime. To do otherwise “denigrates the interest found

critical in Winship”. Mullamey, swpra, 421 US. at 698, The

failure to so instruct the jury in the instant case left it

ignorant as to this most critical constitutional standard.

The jury was, therefore, left to speculate as to whether the

Petitioner had proved his defense, thereby shifting to

Petitioner the burden of proof.

A general burden of proof instruction alone in this

instance could not have provided adequate guidance to the

jurors. This failure to properly instruct coupled with

defense counsel’s failure to adduce the testimony regard-

ing the decedent’s violent propensities resulted in sub- —

stantial prejudice to Petitioner. It is highly probable that

had such evidence been presented and had the jury known

it was the State’s burden to disprove self-defense, Peti-

tioner would have been acquitted.

However, the Hawaii Supreme Court, in a convoluted

and illogical opinion attempts to circumvent constitutional

~ requirements. It held that since Attorney Kim proposed a

specific (and legally correct) burden of proof instruction

on the State’s duty to disprove self-defense beyond a

re:.nable doubt, he thereby displayed his knowledge of

the law, and thereby, his competence. Absurdly, the Hawaii

Supreme Court then ruled that since Attorney Kim with-

8

drew that proper instruction, the constitutional right

thereto was waived. The Hawaii Supreme Court bases its

ruling on the invalid assumption that Attorney Kim had a

tactical reason for the withdrawal. This assumption is

entirely without support in the record. Petitioner submits

that there can be no valid or sufficient reason for this

subtle shift of the burden of proof.

By its opinion, the Hawaii Supreme Court fells two con-

stitutional standards with one blow, placing the Petitioner

in a “Catch-22” situation. Although the Hawaii Supreme

Court recognizes that the general burden of proof instruc-

tion was inadequate and misleading and that Petitioner

had a right to the specific burden of proof instruction, it

finds that Attorney Kim waived that right, thereby demon-

strating his familiarity with it. The Hawaii Supreme Court

apparently equates familiarity with the law and compe-

tence. Petitioner submits that Attorney Kim’s conduct in

this case is more grievous and detrimental to him than

_ would have been total ignorance on Attorney Kim’s part.

The fact that Attorney Kim was aware of Defendant’s

right to a specific burden of proof instruction, and failed

to assure its application (by withdrawing it), is more

grevious than had he not been aware of the right in the

first place. Yet the Hawaii Supreme Court uses this ob-

vious display of ignorance as a rack upon which to hang

its hat and characterizes it as “informal judgment” which

must not be second guessed. Petitioner contends that this

transparent attempt to circumvent his constitutional rights

must be aborted. Mullaney v. Wilbur, supra; Radio Sta-

tion WOW v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89

u.Ed. 2092 (1945).

9

REASONS FOR GRANTING WRIT

1. The opinion of the Hawaii Supreme Court effectively

permits inadequate defense counsel to waive the prosecu-

tion’s constitutional burden of disproving self-defense be-

yond a reasonable doubt, thereby denying Petitioner his

right to a Fair Trial.

2. The result is that a defendant in Hawaii can now be

deemed to have waived, through counsel, the State’s con-

stitutional burden of proof, and at the same time, be

deemed to have had effective assistance counsel.

3. The prejudice to Petitioner is compounded by the

Hawaii Supreme Court’s characterization of clear incom-

petence as acts of informed judgment not to be second

guessed on appeal.

The Hawaii Supreme Court has attempteé to dismiss

the constitutional issues in this case by characterizing de-

fense counsel’s conduct as a product of informed judg-

ment which must not be second guessed on appeal. Spe-

cifically, the conduct so characterized is Attorney Kim’s

withdrawal of the self-defense burden of proof instruction

and his failure to present critical persuasive testimony

on decedent’s extremely violent nature. This classification

as informed judgment is made without any support in the

record and in spite of the blatant prejudice to Petitioner.

The Hawaii Supreme Court acknowledges that Peti-

tioner was entitled to an instruction on the State’s burden

of disproving that he acted in self-defense. In the face of

decisions such as Mullaney v. Wilbur, swpra, it had no

other choice. However, the court has effectively eradicated

that protection by its narrow and isolated approach to the

+

10

issues in this case. The issues of burden of proof in-

structions, waiver and ineffective assistance of counsel are

inextricably interrelated and cannot be so easily and in-

dependently dismissed without irreparable prejudice to

Petitioner and an unconstitutional result.

The United States District Court in Eastern Michigan

was faced with the relationship between these issues and

applied appropriate logic in Corsa v. Anderson, 22 Crim. L.

Rptr. 2402 (U.8.D.C. Mich. 11/22/77). Although that court

noted that review of a claimed erroneous jury instruction

on first degree murder might ordinarily be barred by fail-

ure to object at trial, the District Court concluded that

such must be examined in light of the petitioner’s argu-

ment that his trial counsel was ineffective. It was clear,

as in the case sub judice, that trial counsel did not fail

to object for reasons of trial strategy or to gain tactical

advantage. The erroneous instruction, which effectively

shifted the burden of proof to the defendant, was given in

that case, as here, with approval by defense counsel. That

in itself established the ineffectiveness of counsel because

the result was the same, ie., the Defendant had to bear

the burden of proof. The Court must focus on the clear

and unequivocal prejudice to the Defendant rather than the

impermissible waiver of the burden of proof by defense

counsel. To do otherwise would be in violation of Peti-

tioner’s Fourteenth Amendment right to a Fair Trial.

Likewise, trial counsel’s decision in this case to re-

frain from presenting the clearly persuasive testimony of

CAGLE’s former attorney as to CAGLE’s inter alia, ad-

mitted strangulation of two (2) other persons, was without

11

question prejudicial. Although totally unexplained in the

record, that decision was labelled by the Hawaii Supreme

Court as tactical and within the realm of informed judg-

ment. The Hawaii Supreme Court is obviously dealing with

mere form over substance. Such a decision, which may

realistically have cost Petitioner his deserved freedom,

cannot be dismissed as tactical but rather must be viewed

as either ignorant or as a deliberate witholding of critical

evidence in support of Petitioner’s defense. A more shock-

ing example of ineffective counseling would be difficult

to imagine and the resulting prejudice to Petitioner cannot

be ignored or rationalized.

CONCLUSION

Accordingly, this Court should grant certiorari in order

to affirmatively reconcile the unconstitutional effect of the

Hawaii Supreme Court’s isolated analysis. Based on the

presentation set forth above, Petitioner respectfully sub-

mits that this Petition for Writ of Certiorari is meritorious

and should be granted.

March 23, 1979 ~

Respectfully submitted,

Davin C. ScoutTTER

Attorney for Petitioner

(Appendix “A” Follows)

APPENDIX A

Appendix “A”

In the Supreme Court of the State of Hawaii

October Term 1978

STATE OF HAWAII, Plaintiff-Appellee

v.

DONALD ANGUS McNULTY, Defendant-Appellant

’ No. 5978

Appeal from First Circuit Court

Honorable Robert Won Bae Chang, Judge

December 28, 1978

RICHARDSON, C.J.. KOBAYASHI, OGATA, MENOR

and KIDWELL, JJ.

OPINION OF THE COURT BY RICHARDSON, C.J.

Defendant-appellant, Donald Angus MeNulty, appeals

from a judgment of conviction for murder and from an

order denying his motion for new trial.

We affirm.

On February 21, 1975, appellant was charged with com-

mitting the offense of murder in violation of HRS § 707-701

(1976). The indictment that followed alleged that on or

about February 19, 1974, appellant “intentionally or know-

*HRS § 707-701 states in part that “a person commits the offense

of murder if he intentionally or knowingly causes the death of

another.”

A-2

ingly” shot and killed Dion Yancey Cagle. On the basis

of appellant’s indigency, private counsel was appointed to

undertake his defense.’

A jury trial was initiated on June 16, 1975. During the

course of trial, appellant conceded that he had shot Cagle

but argued that he had done so in self-defense. Thereafter,

appellant was found guilty of murder and sentenced to

imprisonment for a period of twenty years.

On September 25, 1975, appellant’s appointed counsel

withdrew from the case and new counsel was retained to

prosecute the instant appeal. Appellant, through his new

counsel, then filed a motion for new trial on the ground

that newly discovered evidence had surfaced. After a full

evidentiary hearing on the matter, the trial court denied

this motion.

On appeal, McNulty urges reversal of his conviction and

of the order denying new trial on the following grounds:

(1) the trial court erred in failing to specifically instruct

the jury that, in order to convict appellant of murder or

the lesser-included offense of manslaughter, the State must

prove the absence of self-defense beyond a reasonable

doubt; (2) the trial court erred in failing to instruct the

jury that it could convict appellant of no greater offense

than manslaughter if it found that he had an actual, al-

though unreasonable, belief that his use of deadly force

against Cagle was necessary to protect him against death

or serious bodily injury; (3) the trial court erred in in-

structing the jury that, in order for the use of deadly

*The record indicates that the trial court appointed private

counsel to undertake appellant's defense upon recommendation

of the Office of the Public Defender, which due to case overload

was unable to accept the case.

A-3

force to have been justified, the danger to the appellant

must have been imminent; (4) the trial court erred in

denying appellant’s motion for new trial on the ground

that the proffered evidence was not newly discovered; and

(5) appellant was denied effective assistance of counsel at

his trial.

JURY INSTRUCTIONS

Appellant contends that the trial court erred in neglect-

ing to specifically instruct the jury that the state had the

burden of proving beyond a reasonable doubt that the

defendant did not act in self-defense at the time of the

alleged crime. He argues that such an omission could have

led the jury to believe that it was the accused’s burden to

prove self-defense and thus denied him of his right to a

fair trial.

HRS § 703-301 (1976)* provides that justification, in-

cluding the use of force in self-defense, is a complete

defense in any prosecution for an offense. Justification is

not an affirmative defense within the meaning of HRS

§ 701-115 (1976) and, as such, once evidence of justification

*HRS § 703-301 provides in part:

In any prosecution for an offense, justification, as defined

in sections 703-302 through 703-309, is a defense.

HRS §§ 703-304(1) and (2) (1976), the relevant self-defense

provisions, state:

(1) Subject to the provisions of this section and section

703-308, the use of force upon or toward another person is

justifiable when the actor believes that such force is imme-

diately 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 che actor believes that deadly force is necessary to protect

himself against death, serious bodily injury, kidnapping, rape,

or forcible sodomy.

A-4

has been adduced at trial, the prosecution has the burden

of disproving, beyond a reasonable doubt, the facts consti-

tuting justification.‘

In the instant case, the jury was given the following

self-defense instruction :

In order to justify the taking of human life in self-

defense, the defendant must reasonably and honestly

believe that he is in danger of death or of serious

bodily injury; and further, he must believe that it was

necessary for him to use, in his defense and to avoid

death or serious bodily injury to himself, such force

or means as might cause the death of his adversary.

The danger to the defendant must be apparent and

must be present and imminent, and the killing must be

done under a well-founded belief that it is necessary to

save one’s self from death or serious bodily injury.

The kind and degree of force which a person may

lawfully use in self-defense are limited by what a rea-

sonable person in the same situation as such person,

seeing what he sees and knowing what he knows, then

would estimate and thus believe to be necessary. Any

use of force beyond that is regarded by the law as

excessive. Although a person may believe that he is

acting, and may act, in self-defense, he is not justified

‘HRS §701-115(3) provides that a defense is an affirmative

defense only if it is so designated by the Hawaii Penal Code or

another statute, or the Code or another statute “plainly requires

the defendant to prove the defense by a preponderance of the

evidence.”

HRS Nr fag embodies two rules as to the burden of per-

suasion in cases ir which a defense has been raised. In cases in-

volving an affirmative defense, the defendant must prove the facts

ee defense by a preponderance of the evidence. On

the other hand, in cases involving a defense other than an affirma-

tive defense, the prosecut!n as part of its burden of persuasion

5 prove beyond a reasonable doubt the facts negativing the

ense.

A-5

in using a degree of force clearly in excess of that ap-

parently and reasonably necessary under the existing

facts and circumstances.

Although this instruction was preceded by a general in-

struction as to the prosecution’s burden of proving all

elements of the offense of murder, and the lesser-included

offense of manslaughter, no specific charge that the prose-

cution had the burden of proving the absence of self-

defense was given.’ The record indicates that, although

appellant’s trial counsel had initially requested such an

‘The court’s general burden of proof instruction read as follows:

Every defendant is presumed to be innocent of the offense

dinrged in an indictment, and so strong is this presumption

that it clings to him, surrounds, shields, and protects him

throughout the trial of this case, unless and until you are

convinced beyond a reasonable doubt to the contrary... .

A jury must not convict a person charged with crime upon

mere icion, however ae or me gt because there is

considerable or even a preponderance of the evidence in the

case against him. What the law requires before a defendant

can be convicted of a crime is not suspicion, not probabilities,

but proof of his guilt beyond a redsonable doubt.

The burden is upon the prosecution to prove the accused

guilty beyond a reasonable doubt of every material element

of the crime charged, and a defendant has the right to rely

upon a failure of the prosecution to establish such proof.

In this case, you must first determine whether the de-

fendant is gly, or not guilty of Murder. If, and only if, you

find that the offense of Murder has not been proved from

the evidence beyond a reasonable doubt, then you may con-

sider whether or not the defendant is guilty of a lesser-included

offense.

In order to find the defendant guilty of a lesser-included

offense, you must find that the same has been proved by all

the evidence beyond a reasonable doubt.

ns A-6

instruction, it was later withdrawn during final settlement

of instructions in chambers.°

When scrutinizing alleged error in jury instructions, we

must examine the instructions in their entirety. State v.

Shon, 47 Haw. 158, 168, 385 P.2d 830, 837 (1963); State

v. Yoshida, 45 Haw. 50, 64, 361 P.2d 1032, 1040 (1961).

Here, we believe that the court’s instructions, taken as a

whole, were less than ideal. In failing to specifically allo-

cate the burden of disproving self-defense to the state,

the instructions could have permitted the jury to believe

that the appellant, having raised the issue of justification,

was obligated to prove it. See United States v. Corrigan,

548 F.2d 879 (10th Cir. 1977); Frazier v. Weatherholtz,

411 F. Supp. 349 (W.D.Va. 1976); cf. Pratti v. United

States, 389 F.2d 660, 661-62 (9th Cir. 1968) (refusal of

the trial court to instruct the jury that the prosecution

had the burden of negating defendant’s defense of entrap-

ment constituted reversible error); Notaro v. United

States, 363 F.2d 169 (9th Cir. 1966) (misleading jury in-

struction as to the prosecution’s burden of proving absence

of entrapment defense required reversal).

While refusal by the trial court to charge the jury as

to the state’s burden of disproving self-defense may in

*Defendant’s Requested Instruction No. 5 read in part:

If evidence of self-defense is present, the Government must

prove beyond a reasonable doubt that the defendant did not

act in self-defense. If you find that the Government has failed

to prove beyond a reasonable doubt that the defendant did

not act in self-defense, you must find the defendant not guilty.

In other words, if you have a reasonable doubt whether or not

me. defendant acted in self-defense, your verdict must be not

guilty.

Taken from DEVITT & BLACKMAR, FEDERAL JURY PRAC-

TICE AND INSTRUCTIONS (2d ed. 1970) § 43.10).

A-7

some cases constitute reversible error, see, e.g., United

States v. Corrigan, supra, here, however, the specific bur-

den of proof instruction was voluntarily withdrawn by the

appellant and no objection to the court’s instructions was

raised. Under these circumstances, appellant may not now

challenge the propriety of the court’s charge. Rule 30(e),

HRCrP (1960). See State v. Onishi, 59 Haw. 384, 581 P.2d

763 (1978); State v. Jaukea, 56 Haw. 343, 354-55, 537 P.2d

724, 733 (1975). See also Hankerson v. North Carolina,

4432 U.S. 233, 244 n.8 (1977); Lopez v. United States, 373

U.S. 427, 436-37 1963). Although we have the power sua

sponte, to notice plain errors affecting substantial rights

not objected to at trial, State v. Ontsht, supra, other courts

have consistently refused to find plain error in cases where

a specific burden of proof instruction relating to the ac-

cused’s interposed defense was omitted without objection.

See United States v. Jackson, 569 F.2d 1003, 1008-11 (7th

Cir. 1978); Government of Virgin Islands v. Cruz, 478

F.2d 712, 717-18 (3d Cir. 1973); Umited States v. Rodri-

guez, 446 F.2d 859, 860 (9th Cir. 1971), cert. denied, 404

U.S. 1021 (1972); United States v. Levin, 443 F.2d 1101,

1107 (8th Cir.), cert. denied, 404 U.S. 944 (1971; Esposito

v. United States, 436 F.2d 603, 604 9th Cir. 1970); United

States v. Conversano, 412 F.2d 1143, 1148-49 (3rd Cir.),

cert. denied, 396 U.S. 905 (1969); Nordeste v. United

States, 393 F.2d 335, 339-40 (9th Cir.), cert. denied, 393

U.S. 878 (1968); State v. Love, 285 Minn. 444, 449-52, 173

N.W.2d 423, 426-27 (1970)." But see State v. Brown, 131

‘Had the trial court’s instruction expressly put the burden of

proving self-defense on appellant, we would have been inclined

to notice plain error. See United States v. Levin, supra at 1107.

A-8

N.J. Super. 228, 329 A.2d 347 (1974), aff’d, 66 N.J. 146,

329 A.2d 340.

With respect to the trial court’s failure, without objec-

tion, to expressly charge the jury as to the prosecution’s

burden of proving the absence of an entrapment defense,

the court of appeals in United States v. Conversano, supra,

stated :

Although [the] trial judge charged that the burden

was on the prosecution to prove beyond a reasonable

doubt that defendant was guilty of each element of

the crime for which he was accused, he did not tell

them that this same burden was also on the Govern-

ment to establish that entrapment did not occur. How-

ever, no point for charge was submitted concerning it

nor was any objection made to the charge of the court

at the close thereof, and we see no reason, under these

circumstances, to invoke the Plain Error Rule, Federal

Rule of Criminal Procedure 52(b), and, accordingly,

absent any objection by the defendant, no substantial

rights of his were affected as to warrant consideration

without such objection. Lopez v. United States, 373

U.S. 427, 436, 83 S.Ct. 1381, 10 L.Ed. 2d 462 (1963);

Reid v. United States, 334 F.2d 915, 917 (C.A. 9, 1964) ;

Martinez v. United States, 300 F.2d 9-10 (C.A. 10,

1962). ;

While it has been held that the burden is on the

Government to prove beyond a reasonable doubt that

the defendant was not entrapped when that defense is

properly raised, United States v. Landry, 257 F.2d 425

(C.A. 7, 1958), it also has been held that the trial court’s

refusal to so charge upon request is reversible error,

Pratti v. United States, 385 F.2d 660 (C.A. 9, 1968),

but we reiterate that since no objection to the charge

on this point was made, we, therefore, must deem the

ee

26 CN + Se neem

A-9

general instructions given on the burden of proof to

be broad enough to have covered the issue of entrap-

ment. United States v. Salas, 387 F.2d 121 (C.A. 2,

1967).

412 F.2d at 1149 (footnote omitted).®

We hold that appellant would have been entitled, upon

proper request, to have the trial court specifically inst>uet

the jury that the prosecution’s burden of persuasion in-

clfided proving that appellant had not acted in self-defense

at the time of the alleged crime. However, because he failed

to object at trial, appellant is now precluded from raising

the failure of the court to give such an instruction as a

ground for reversal on appeal, and the court’s general

burden of proof instruction will be deemed sufficient to*

cover the issue of self-defense.

Also with respect to the trial court’s jury instructions,

appellant argues that the court’s charge erroneously al-

lowed the jury to find appellant guilty of murder even

though it found that appellant had an actual, but unreason-

able, belief that deadly force was necessary in self-defensé.

Further, he asserts that it was error to instruct the jury

that, in order to perfect the defense of justification, the

danger posed by the deceased (Cagle) must have been

“imminent.” These instructions were given by agreement

of counsel no objections to them were raised at trial. We

believe that appellant is now precluded from challenging

their propriety by virtue of Rule 30(e), HRCrP (1960).

8Although Conversano involved the failure to instruct the jury

as to the burden of persuasion of the defense of entrapment, we

think it is indistinguishable for present purposes from the instant

case since there, as here, the prosecution had the burden of dis-

proving beyond a reasonable doubt the facts constituting the

interposed defense.

A-10

MOTION FOR NEW TRIAL

Appellant, through his newly retained counsel, filed a

post-verdict motion for new trial alleging that newly dis-

covered evidence had been uncovered. After a full eviden-

tiary hearing in which both appellant and his prior

appointive counsel testified, the trial court denied said mo-

tion on the grounds that the evidence that was supposedly

“newly discovered” was known to appellant’s appointive

counsel prior to trial, that appellant’s counsel had discussed

said evidence with appellant before trial, and that appel-

lant had independent knowledge of some matters relating

to said evidence prior to trial.

Appellant’s motion was supported by affidavits of an

attorney who had defended Cagle in a prior criminal trial

and of appellant himself. The attorney’s affidavit stated

that appellant’s trial counsel had contacted him in regards

to appellant’s upcoming trial and that during this time he

informed appellant’s counsel of his prior representation

as a public defender of Cagle on a murder charge. Cagle’s

former attorney alleged that he told appellant’s counsel

that he believed Cagle was a “wild man” who “loved to

drink and fight.” His affidavit further provided that he

had been available as a potential witness in appellant’s

trial and that, had he been asked, he would have testified as

to certain private observations which would have por-

trayed Cagle as an extremely aggressive and violent indi-

vidual.

In appellant’s affidavit, he stated, inter alia, that he had

not been advised of his appointive counsel’s conversation

with Cagle’s former attorney and, had he been aware of

A

A-11

this potential witness, he would have “insisted that he

(Cagle’s former attorney) be called as a witness” in ap-

pellant’s behalf. Appellant’s trial counsel, on the other

hand, asserted both in his testimony at the hearing for

new tric] and in an affidavit incorporated into the prose-

cution’s opposing memorandum that he had apprised ap-

pellant of his conversation with Cagle’s former attorney

a few days before trial and that his decision not to offer

the attorney’s testimony was made in good faith and pur-

suant to his professional judgment.

A motion for new trial based on newly discovered evi-

dence will be granted only if all of the following require-

ments have been satisfied: (1) the evidence has been dis-

covered after trial; (2) such evidence could not have been

discovered before or at trial through the exercise of due

diligence; (3) the evidence is material to the issues and

not cumulative or offered solely for purposes of impeach-

ment; and (4) the evidence is of such a nature as would

probably change the result of a later trial. Territory v.

Abad, 39 Haw. 393, 395, appeal dismissed, 206 F.2d 861

(9th Cir. 1953). The denial of a motion for new trial is

within the sound discretion of the trial court and will not

be upset absent a clear abuse of discretion. See Harkins

v. Ikeda, 57 Haw. 378, 380, 557 P.2d 788, 790 (1976);

Struzik v. City and County of Honolulu, 50 Haw. 241, 246,

437 P.2d 880, 884 (1968). After a thorough examination of

the record, we are convinced that the trial court’s denial

of appellant’s motion for new trial was proper.

In determining whether evidence is, in truth, newly dis-

covered and whether sufficient diligence was used to learn

of such evidence, the composite knowledge of both the

A-12

accused and his counsel will be considered. See 2 Wricut

& Muuer, Fepera Practice anp Procepure: Criminal

§ 557 at 516, 521-22 (1969). Thus, evidence known to de-

fendant’s counsel before or at trial does not constitute

newly discovered evidence justifying new trial. See United

States v. Bertone, 249 F.2d 156, 160-61 (3d Cir. 1957);

People v. Fain, 174 Cal. App. 2d 856, 864-65, 345 P.2d 305,

310 (1959); Hilt v. State, 91 Nev. 654, 661, 541 P.2d 645,

650 (1975); Hill v. State, 567 P.2d 516, 522 (Okla. Crim.

1977), Garcia v. State, 501 P.2d 1128, 1140 (Okla. 1972).

Here, it is uncontroverted that appellant’s trial counsel was

aware that Cagle’s former counsel possessed information

relating to Cagle’s character but chose not to call him to

testify at appellant’s trial. This evidence cannot be con-

sidered newly discovered. Moreover, even if appellant’s

trial counsel was without knowledge of some of the evi-

dence which appellant relied upon in his motion for new

trial, appellant has not affirmatively demonstrated that

due diligence was exercised to procure such evidence prior

to the conclusion of trial. See Deponte v. Ulupalakua

Ranch, 49 Haw. 672, 427 P.2d 94 (1967).

EFFECTIVE ASSISTANCE OF COUNSEL

Appellant’s final contention is that he was denied the ef-

fective assistance of counsel at his trial inasmuch as his

appointive counsel’s ignorance of the relevant case law re-

sulted in the jury being erroneously instructed as to the

law of self-defense and inasmuch as counsel knowingly

failed to adduce admissible evidence crucial to and suppor-

tive of the appellant’s defense of justification.

en

A-13

In State v. Kahalewai, 54 Haw. 28, 501 P.2d 977 (1972),

we stated that in order to establish inadequacy of counsel

the appellant must demonstrate that his counsel’s actions

at trial were boti: unreasonable and the result of constitu-

tionally inadequate preparation rather than informed judg-

ment. 54 Haw. at 32, 501 P.2d at 980. Although, in retro-

spect, the reasonableness of appellant’s trial counsel’s ac-

tions is questionable, we are not convinced that he was

uninformed as to the relevant law of self-defense. Appel-

lant argues that his trial counsel was ignorant of the fact

that one who had an actual, although unreasonable, belief

that use of deadly force was necessary in self-defense could

not be convicted of murder under HRS § 703-310 (1976).

However, this proposition is far from being an established

rule of law in Hawaii.’ The failure of counsel to assert

every novel, albeit plausible, legal theory in the defense

of an accused does not in itself reflect his ignorance of

the law. Appellant further argues that trial counsel’s vol-

untary withdrawal of a requested instruction which cor-

rectly placed the burden of persuasion with respect to self-

defense on the prosecution also evidences his ignorance

of the law. We disagree. The fact that trial counsel ten-

dered such an instruction in the first place could very well

*Although a few a i ions recognize that one who honestly

but unreasonably believed that the use of deadly force was neces-

sary in self-defense can only be convicted of manslaughter, see

e.g., Allison v. State, 74 Ark. 444, 454, 86 S.W. 409, 413 (1905);

State v. Thomas, 184 N.C. 757, 762, 113 S.E. 834, 837 (1922);

C h v. Colandro, 231 Pa. 343, 80 A. 571 (1911); see

also Model Penal Code § 3.04, Comment at 15-17, § 3.09 Comment

at 76-79 (Tent. Draft No. 8, 1959), HRS § 703-310 has not yet been

so construed nor has this jurisdiction ever recognized such a view.

A-14

reflect his awareness of the possibility of giving it. See

People v. Lewis, 55 Ill. App. 3d 1022, 371 N.E.2d 672, 676

(1977).*°

Appellant’s final basis for asserting ineffective assistance

of counsel stems from the failure of his trial counsel to

call Cagle’s former attorney to testify as to Cagle’s violent

propensities. However, the decision of whether or not to

call a witness in a criminal trial is normally a matter within

the judgment of counsel and, accordingly, will rarely be

second guessed by judicial hindsight. See Sherill v. Wyrick,

524 F.2d 186, 190 (8th Cir.), cert. denied, 424 U.S. 923

(1976) ; United States v. Yanishefsky, 500 F.2d 1327, 1331-

32 (2d Cir. 1974); Walker v. Henderson, 492 F.2d 1311,

1314 (2d Cir.), cert. denied, 417 U.S. 972 (1974), People v.

Beagle, 6 Cal.3d 441, 458, 492 P.2d 1, 12, 99 Cal. Rptr.

313, 324 (1972); Bell v. United States, 260 A.2d 690 (D.C.

1970). In light of the fact that appellant’s trial counsel

called two competent witnesses, in addition to appellant

himself, to testify as to Cagle’s character, we fail to see

how his omission denied appellant his right to effective

counsel.

Viewing the record in its entirety, we cannot say that

the manner in which appellant’s appointive counsel under-

took appellant’s defense was outside “the range of compe-

*°Appellant also contends that his trial counsel’s ignorance of

the law of self-defense permitted the jury to be instructed that

the danger posed to one acting in self-defense must have been

imminent. We believe that such error, if error at all, was harmless.

A-15

tence demanded of attorneys in criminal cases.” State v.

Kahalewai, 54 Haw. at 30-32, 501 P.2d at 979-80.

Affirmed.

William S. Richardson

Bert T. Kobayashi

Thomas S. Ogata

Benjamin Menor

H. B. Kidwell

David Schutter and Jan M.

Weinberg (Schutter, O’Brien &

Weinberg of counsel) for

defendant-appellant

Lydia Garcia, Deputy Prose-

euting Attorney for plaintiff-

appellee