HAWAI’I JURY INSTRUCTIONS

HI 7.   SPECIFIC DEFENSES

INTRODUCTORY COMMENT

A defendant “is entitled to an instruction on every defense or theory of defense having any support in the evidence . . . no matter how weak, inconclusive or unsatisfactory the evidence may be.” State v. Robinson, 82 Hawai`i 304, 922 P.2d 358 (1996); State v. O’Daniel, 62 Haw. 518, 527, 616 P.2d 1383, 1390 (1980) (emphasis in original); see also State v. Pinero, 70 Haw. 509, 778 P.2d 704 (1989); State v. Lira, 70 Haw. 23, 759 P.2d 869 (1988); State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987); State v. Russo, 69 Haw. 72, 734 P.2d 156 (1987); State v. Cordeira, 68 Haw. 207, 707 P.2d 373 (1985); State v. Unea, 60 Haw. 504, 591 P.2d 615 (1979); State v. Riveira, 59 Haw. 148, 577 P.2d 793 (1978); State v. Warner, 58 Haw. 492, 573 P.2d 959 (1977); State v. Dumlao, 6 Haw.App. 173, 715 P.2d 822 (1977); State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971); State v. Irvin, 53 Haw. 119, 488 P.2d 327 (1971); State v. Chang, 46 Haw. 22, 347 P.2d 5 (1962); Territory v. Alcantara, 24 Haw. 197 (1918).

The court should review the evidence “in a light most favorable to [the defendant] in determining whether or not the instruction should be given.” Lira, 70 Haw. at 30, 759 P.2d at 873; O’Daniel, 62 Haw. at 527, 616 P.2d at 1390-91.

But “where evidentiary support for the asserted defense, or any of its essential components, is clearly lacking, it would not be error for the trial court either to refuse to charge on the issue or to instruct the jury not to consider it.” Lira, 70 Haw. 23, 759 P.2d 869; Russo, 69 Haw. at 76, 734 P.2d at 158; State v. Manloloyo, 61 Haw. 193, 600 P.2d 1139 (1979); State v. Horn, 58 Haw. 252, 566 P.2d 1378 (1977).

The Hawai`i Penal Code “places an initial burden on the defendant to come forward with some credible evidence of facts constituting the defense, unless, of course, those facts are supplied by the prosecution’s witnesses.” Commentary to HRS § 701- 115 (1985); see also State v. Gabrillo, 10 Haw.App. 448, 877 P.2d 891 (1994). If affirmative defenses are not involved and the defendant introduces evidence of a defense or the evidence is provided by the government’s witnesses, the defendant becomes “entitled to an acquittal if the trier of fact finds that the evidence, when considered in the light of any contrary prosecution evidence, raises a reasonable doubt as to the defendant’s guilt.” HRS § 701-115(2)(a) (1985); Gabrillo, 10 Haw.App. 448, 877 P.2d 891.

A defendant is entitled to have the jury instructed with inconsistent theories of defense if there is evidence supporting the theories. See Lira, 70 Haw. at 29, 759 P.2d at 873 (“[a] seeming inconsistency of defenses thus did not preclude an instruction on consent”); State v. Pavao, 81 Hawai`i 142, 913 P.2d 553 (App. 1996) (defendant entitled to defense of others instruction even if he was also asserting that he never struck complainant); see also Santiago, 53 Haw. 254, 492 P.2d 657; Irvin, 53 Haw. 119, 488 P.2d 327.

If the evidence supports a defense, the trial court’s denial of an improperly worded defense instruction, or an instruction that is inaccurate in some particular, does not relieve the trial court from the burden of instructing the jury on every defense or theory of defense having support in the evidence. Riveira, 59 Haw. 148, 577 P.2d 793.

Where a jury has been given instructions on a defense other than an affirmative defense, but has not been instructed that the prosecution bears the burden of proof beyond a reasonable doubt to negative that defense, substantial rights of the defendant may be affected and plain error may be noticed. Raines v. State , 79 Hawai`i 219, 900 P.2d 1286 (1995) (overruling State v. McNulty, 60 Haw. 259, 588 P.2d 438 (1978)).