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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---

________________________________________________________________

STATE OF HAWAII, Respondent/Plaintiff-Appellee,

vs.

DEAN VICTOR MATUU, Petitioner/Defendant-Appellant.

________________________________________________________________

SCWC-16-0000571

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000571; CR. NO. 15-1-0128)

JUNE 28, 2019

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

On April 29, 2016, a jury convicted Petitioner/DefendantAppellant Dean Victor Matuu (“Matuu”), who had been indicted on 

charges of Murder in the Second Degree in violation of Hawaiʻi 

Revised Statutes (“HRS”) §§ 701.5 and 706-656 (2014), of the

Electronically Filed

Supreme Court

SCWC-16-0000571

28-JUN-2019

08:43 AM
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lesser included offense of Assault in the First Degree, HRS § 

707-710 (2014), for stabbing his cousin Frank Kapesi (“Frank”)

on January 25, 2015 at a home Matuu and Frank shared with other 

family members. 

This appeal arises from Matuu’s challenge that his 

conviction was not supported by substantial evidence and that 

the circuit court’s jury instructions were prejudicially 

erroneous or misleading. The ICA affirmed the Circuit Court of 

the First Circuit’s (“circuit court[’s]”) Judgment of Conviction 

and Sentence,

1 concluding in relevant part that there was 

substantial evidence to support the jury’s verdict and that the 

jury instructions, when viewed as a whole, were not 

prejudicially insufficient, erroneous, inconsistent, or 

misleading. See State v. Matuu, No. CAAP-16-571 (App. Sep. 29, 

2017) (SDO).

For the following reasons, the ICA correctly concluded that 

Matuu’s conviction on the lesser included offense of Assault in 

the First Degree was supported by substantial evidence and that 

the circuit court’s jury instructions, as a whole, were not 

prejudicially erroneous or misleading. However, the basis upon 

which the ICA had concluded “the [circuit] court sufficiently 

instructed the jury regarding unanimity” and that therefore 

“[t]he additional unanimity instruction requested by Matuu was 

 

1 The Honorable Glenn J. Kim presided.
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unnecessary,” Matuu, SDO at 10–11, is erroneous. The general 

unanimity instruction as to the elements, cited to by the ICA,

did not include the requirement that the prosecution negative

justification defenses as an element of the offense. 

Nevertheless, the circuit court’s justification instructions and

the general “unanimous verdict” instruction did require for a 

conviction jury unanimity that the prosecution meet its burden 

of proving beyond a reasonable doubt that it negatived Matuu’s 

justification defenses. The justification instruction made 

clear that the prosecution had the burden of disproving the 

self-defense and defense-of-other defenses beyond a reasonable 

doubt, and the general unanimous verdict instruction made clear 

that the verdict had to be unanimous, which would include the 

prosecution’s burden to negative the defenses beyond a 

reasonable doubt.

Accordingly, although the ICA erred in concluding that the 

elements instruction addressed the unanimity required to 

disprove the justification defenses, the instructions as a whole

were not insufficient, erroneous, inconsistent, or misleading. 

We therefore affirm the ICA’s Judgment on Appeal that affirms 

the circuit court’s Judgment of Conviction and Sentence. The 

requirement of unanimity beyond a reasonable doubt as to the 

negativing defenses element would have been much clearer to the 

jury if the justification defense instructions had specifically 
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included the unanimity requirement. We therefore provide 

guidance that circuit courts should do so in the future. 

II. Background

A. Factual Background 

From 2013 when Matuu was seventeen years old, he shared a

home with his cousins, Frank2 and Kapesi Kapesi, and two uncles. 

Matuu and Frank shared a living space, which was separated by a 

chest of drawers, television set, other furniture, and a tarp. 

Frank was often “high” on drugs. Additionally, he had been 

belligerent with other family members in the past. Testimony 

regarding three instances between 2013 and 2014 of Frank’s 

belligerent behavior were provided at trial.

First, during a family party in 2013 while Kapesi was 

dancing to music, Frank punched Kapesi in the face for “no 

reason,” requiring family members to take Kapesi to a hospital 

for stitches. The incident caused Matuu, who was still in high 

school at the time, to fear Frank as he “kn[e]w for sure that 

[Frank] [could] do that to anybody and to me, too.” 

Second, in November 2014, Frank directly accosted Matuu

after Matuu returned from playing basketball, telling Matuu, “I 

going beat you up.” Nothing came of the incident as Matuu, who 

 

2 Although Frank was referred to as “Uncle Frank” by Kapesi, testimony 

showed that Frank was Matuu’s cousin. 
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did not know why Frank was mad, told Frank he did not want to 

fight and then returned to the park. 

Third, in December 2014, after hearing a sudden “crashing 

in front of the garage” as if “something broke,” Matuu came out 

of his room and saw one of his uncles get up from the sidewalk

as Frank walked away. The incident scared Matuu. 

In the afternoon of January 23, 2015, when Matuu returned 

home around three or four o’clock, it was apparent to Matuu that 

Frank was high on drugs. Later, without interacting with Frank, 

Matuu helped an uncle’s girlfriend prepare a meal in a slow 

cooker. Matuu then returned to his room. 

Around six in the evening after drinking one or two shots 

of Ciroc3 with Kapesi, Matuu went to a friend’s house down the 

road and smoked some marijuana. Matuu returned home around four

or five in the morning on January 24, 2015. 

Upon returning home, Matuu went to the kitchen to scoop 

food out of the slow cooker. According to Matuu, as he was 

doing so, Frank accosted him:

[T]hat’s when all of a sudden Mr. Frank Kapesi . . . 

approached me over here, and I seen him with my side -- my 

side vision, and he came to me, and he was like, “Oh, you 

fucka. Why you gotta come and eat all the food? Why you 

gotta eat the food for?” I was looking at him. “Bro, I’m 

not eating all the food. There’s still food in there. I 

made this food. I helped somebody make this food.” But, 

no, he got angry at me. I don’t even know what I did to 

him, but he got mad. After I was making the food, he was 

still approaching me. “Fucka, I telling you why you gotta 

eat all the food?”

 

3 Ciroc is a brand of vodka.
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Matuu then retreated to his room, but Frank followed him and 

kept yelling at him. According to Matuu, 

he was telling me, “Oh, you don’t hear me, you fucka?” I 

was telling him, “Bro, I’m not even -- I’m not even trying 

to argue with you.” I’m just trying to make my food. I 

was feeling good, buzzing, and I wanted to have a good time 

because I just came from a friend’s house. And after that, 

he was still yelling at me. “Oh, you fucka. Fuck you. I 

going beat you up and I’ll put you in the hospital.” And 

after that, I was like, “Bro.” Then I came around. Came 

around, put my plate on the stool, came around and I stand 

right here. And I was telling him -- I was trying to tell 

him nicely, trying to calm him down, trying to kiss ass 

because I know he can hurt me, or he can beat me up. I was 

telling him, “Bro, why you gotta – why you gotta yell at 

me? Why you gotta -- why you gotta say this kind of stuff 

to me?” But, no, he didn’t -- he wasn’t even calm down. 

He was already mad at me.

Matuu was “scared” during the verbal confrontation. Matuu 

surmised that Frank must have seen that Matuu was fearful and 

began punching Matuu. At first, Matuu blocked Frank’s punches;

ultimately Matuu grabbed and wrestled with Frank. While they

wrestled, Matuu thought that Frank “was gonna beat me up because 

he was telling me he was going to put me in the hospital.” 

Matuu also “was hoping that [Frank] wouldn’t get mad,” but Frank 

nevertheless “was getting mad” while they wrestled. 

Kapesi, who had heard Matuu and Frank argue about the food, 

came out of his room when he heard something break. When Kapesi

found them wrestling on top of each other near Frank’s bed, he 

“jumped in . . . to break them apart.” According to Kapesi, 

Frank grabbed Kapesi, slammed him to the ground where he lost 

his breath, and was on top of, but did not punch, Kapesi. 
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In the meantime, Matuu was “scared” when Frank had slammed 

Kapesi to the ground. According to Matuu, Frank was punching 

Kapesi. Matuu thought that Frank would come after him when

Frank was “done with” Kapesi, and therefore Matuu needed to 

“protect[] himself.” Thus, when Matuu had “br[oken] free” while 

Frank was on top of Kapesi, he went to the kitchen and grabbed a 

steak knife. 

According to Matuu, when he came back from the kitchen, 

Frank was still on Kapesi, so Matuu stabbed Frank once “on the 

side” to “stop him” because he knew Frank was strong and 

violent. After stabbing Frank, Matuu said to Frank: “I told 

you, bro. I told you to stop, but you was pushing me, and you 

was bothering me, and you was telling me you was going beat me 

up and put me in the hospital.” 

However, according to Kapesi, after he got his wind back,

he stood between Matuu and Frank and yelled, “Stop already. 

Enough.” Kapesi saw Matuu return “fast” from the kitchen area. 

Kapesi then put his hand up to stop Matuu from swinging at Frank 

and received a cut on his hand. Kapesi was in shock, tended to 

his cut for about thirty seconds, and the “next thing [he] knew, 

Frank was on the ground” gasping for air.

An autopsy of Frank’s body showed multiple blunt force 

injuries, four stab wounds of the torso, and two incised wounds, 

i.e., wounds that are longer on the surface of the skin than 
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they are deep. A knife blade was found within a wound track 

that perforated the left lung and the pulmonary artery. Another 

knife blade was found at the scene near Frank’s body, although

Matuu testified that he recalled grabbing only one knife. A 

toxicology report showed that methamphetamine and amphetamine 

were present in Frank’s blood. 

B. Procedural Background

Opening statements were made on April 26, 2016, and trial 

continued on April 28 and 29, 2016. After closing arguments, 

the jury was instructed in relevant part to “consider all of the 

instructions as a whole and consider each instruction in light 

of all of the others”; to “presume the defendant is innocent of 

the charge against him” as “the prosecution has the duty of 

proving every material element of the offense charged against 

the defendant beyond a reasonable doubt”; and that “[i]n order 

for the prosecution to prove an element, all twelve jurors must 

unanimously agree that the same act has been proved beyond a 

reasonable doubt.”

The jury was then instructed on the “material elements” of 

Murder in the Second Degree and all of its included offenses, 

“each of which the prosecution must prove beyond a reasonable 

doubt.” The circuit court further instructed that “[s]elf-
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defense is a defense to the charge of Murder in the Second 

Degree and all of its included offenses.”4 Specifically:

Self-defense involves consideration of two issues. First, 

you must determine whether the defendant did or did not use 

“deadly force.” Second, you must determine whether the 

force used was justified. The burden is on the prosecution 

to prove beyond a reasonable doubt that the force used by 

the defendant was not justified. If the prosecution does 

not meet its burden, then you must find the defendant not 

guilty.

. . . .

If you determine that the defendant used “deadly 

force,” then you are to proceed to the section in this 

instruction entitled “Deadly Force Used.” If you determine 

that the defendant did not use “deadly force,” then you are 

to proceed to the section in this instruction entitled 

“Deadly Force Not Used.” You must then follow the law in 

the applicable section to determine the second issue, which 

is whether the force used by the defendant was justified.

(Emphasis added.) The circuit court similarly instructed that 

“[d]efense[-]of[-]others is a defense to the charge of Murder in 

the Second Degree and all of its included offenses,” and gave 

similar instructions regarding the “issues” the jury was to 

consider.5 The circuit court also instructed that “[a] verdict 

must represent the considered judgment of each juror, and in 

 

4 Matuu had requested a self-defense instruction. “[A] defendant is 

entitled to a requested jury instruction on a defense when he presents some 

evidence going to the defense.” State v. Taylor, 130 Hawaiʻi 196, 207, 307 

P.3d 1142, 1153 (2013) (citing State v. Stenger, 122 Hawaiʻi 271, 226 P.3d 441 

(2010)). 

5 Matuu did not propose a defense-of-others instruction. The circuit 

court, however, correctly gave an instruction on this justification defense. 

See Taylor, 130 Hawaiʻi at 207, 307 P.3d at 1153 (holding that if a defendant 

does not request a defense instruction, a circuit court’s failure to instruct 

on such a defense where there is evidence of the defense upon which a 

reasonable juror could harbor a reasonable doubt as to the defendant’s guilt, 

will be reviewed for plain error). 
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order to reach a verdict, it is necessary that each juror agree 

thereto. In other words, your verdict must be unanimous.”

Matuu’s proposed self-defense instruction, which was

rejected by the circuit court, differed in relevant part from 

the circuit court’s given instruction, as it had proposed to 

clearly instruct the jury that its determination as to whether 

the defendant used “deadly force” be unanimous by adding the 

following underlined language:

If you unanimously determine beyond a reasonable 

doubt that the defendant used “deadly force,” then you are 

to proceed to the section in this instruction entitled 

“Deadly Force Used.” If you determine that the defendant 

did not use “deadly force,” or are unable to reach 

unanimous agreement on this issue, then you are to proceed 

to the section in this instruction entitled “Deadly Force 

Not Used.” You must then follow the law in the applicable 

section to determine the second issue, which is whether the 

force used by the defendant was justified.

On April 29, 2016, a jury convicted Matuu of the lesser 

included offense of Assault in the First Degree, a violation of 

HRS § 707-710.6 He was sentenced to five years of incarceration 

as a young adult defendant and ordered to pay restitution and 

fees. 

C. Appeal to the ICA

Matuu timely filed a Notice of Appeal to the ICA, and 

presented two points of error:

 

6 “Assault in the first degree. (1) A person commits the offense of 

assault in the first degree if the person intentionally or knowingly causes 

serious bodily injury to another person. . . .” HRS § 707-710 (2014).
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A. There was no substantial evidence to support Matuu’s 

conviction where the State did not prove beyond a 

reasonable doubt facts negating his justification defenses.

B. Matuu’s conviction must be vacated where the Circuit 

Court’s instruction on the use of deadly force in selfprotection was prejudicially erroneous and misleading.

On the first issue, Matuu argued that the evidence at trial 

established that Matuu subjectively believed that his use of 

force was necessary in self-defense and that such belief was 

objectively reasonable. Matuu pointed to the fact that Frank 

abused drugs often and did so on the night in question, 

exhibited volatile behavior, and in three prior instances, Frank 

behaved belligerently or violently toward either Matuu or 

another family member. Additionally, because Matuu had seen 

Frank punch Kapesi in the past, “Matuu reasonably believed that 

Kapesi would have been justified in using deadly force to 

protect himself from Frank’s attack” when Frank had slammed 

Kapesi to the ground, thereby supporting Matuu’s defense-ofothers justification. 

On the second issue, Matuu asserted that the circuit 

court’s self-defense instruction, which omitted Matuu’s proposed 

language regarding unanimity and the prosecution’s “beyond a 

reasonable doubt” burden of proof, was erroneous because “the 

jury may not have unanimously determined beyond a reasonable 

doubt that Matuu had used ‘deadly force’ . . . . The erroneous 

instructions were not harmless as the jury could have then 
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rejected self-defense because it found that Matuu could have 

used ‘force’ in self-defense, but not ‘deadly force.’” 

The ICA rejected the challenges. As to the first issue, 

the ICA identified substantial evidence in the record showing 

that even if Matuu subjectively believed that his use of force 

was necessary in self-defense, that belief was not reasonable 

because evidence showed that Frank was stabbed multiple times 

with two knives, and such force was not necessary for selfdefense when Frank was unarmed. See Matuu, SDO at 6. 

As to the second issue, the ICA noted that the instruction 

for assault in the first degree necessitated a finding that 

Matuu had used “deadly force.” Additionally, as jury 

instructions are to be considered as a whole, see Matuu, SDO at 

10 (citing Samson v. Nahulu, 136 Hawaiʻi 415, 425, 363 P.3d 263, 

273 (2015)), the ICA concluded the jury instructions included 

appropriate unanimity instructions. For example, the ICA 

observed that the jury was explicitly instructed that “in order 

to convict, the jury must unanimously agree to each element of 

the crime beyond a reasonable doubt,” and that “‘[t]he burden is 

on the prosecution to prove beyond a reasonable doubt that the 

force used by the defendant was not justified. If the 

prosecution does not meet its burden, then you must find the 
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defendant not guilty.’” Matuu, SDO at 11.7 According to the 

ICA, the jury was also given a general unanimity instruction. 

See Matuu, SDO at 10. Accordingly, the ICA concluded that 

Matuu’s instruction using additional unanimity language was not 

necessary. See id.

Now on appeal to this court, Matuu reasserts the same 

questions he had posed to the ICA:

1. Whether the ICA gravely erred in holding that there 

was substantial evidence to support Matuu’s conviction 

where the State failed to prove beyond a reasonable doubt 

facts negating his justification defenses?

2. Whether the ICA gravely erred in holding that the 

Circuit Court’s jury instruction on the use of deadly force 

in self-protection [and defense-of-others] was 

prejudicially erroneous and misleading?

 

For the following reasons, although the ICA erred in 

concluding that the elements instruction addressed the unanimity 

required to disprove the justification defenses, the 

instructions as a whole were not insufficient, erroneous, 

inconsistent, or misleading. We therefore affirm the ICA’s 

Judgment on Appeal that affirms the circuit court’s Judgment of 

Conviction and Sentence, and provide the following guidance 

regarding the inclusion of the unanimity requirement for the 

negativing defenses element. 

 

7 The full text is available on page 21, infra. 
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III. Standards of Review

A. Jury Instructions

The standard of review for a trial court’s issuance or 

refusal of a jury instruction is whether, when read and 

considered as a whole, the instructions given are 

prejudicially insufficient, erroneous, inconsistent, or 

misleading. 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. In other words, error is not to 

be viewed in isolation and considered purely in the 

abstract.

State v. Kassebeer, 118 Hawaiʻi 493, 504, 193 P.3d 409, 420 

(2008) (internal quotation marks, citations, and brackets 

omitted) (quoting State v. Mainaaupo, 117 Hawaiʻi 235, 247, 178 

P.3d 1, 13 (2008)).

B. Sufficiency of the Evidence

The appellate court reviews the sufficiency of evidence on 

appeal as follows:

[E]vidence adduced in the trial court must be considered in 

the strongest light for the prosecution when the appellate 

court passes on the legal sufficiency of such evidence to 

support a conviction; the same standard applies whether the 

case was before a judge or jury. 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.

State v. Richie, 88 Hawaiʻi 19, 33, 960 P.2d 1227, 1241 (1998) 

(quoting State v. Quitog, 85 Hawaiʻi 128, 145, 938 P.2d 559, 576 

(1997)). “‘Substantial evidence’ as to every material element 

of the offense charged is credible evidence which is of 

sufficient quality and probative value to enable a person of 
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reasonable caution to support a conclusion.” Id. (internal 

quotation marks and citation omitted).

IV. Discussion

We proceed by examining Matuu’s second question regarding 

jury instructions before proceeding to discuss the first 

question regarding substantial evidence.

A. The ICA Correctly Concluded That the Jury Instructions, 

When Viewed as a Whole, Were Not Prejudicially Erroneous or 

Misleading, Although It Erred by Concluding the Instruction 

Requiring Unanimity in Finding the Elements Included the 

Justification Defenses 

1. Matuu’s specific concern that the jury may not have 

unanimously agreed that he used “deadly force” lacks 

basis. 

At trial, in relevant part, the parties agreed to the 

following instruction regarding Assault in the First Degree

proposed by the court:

If and only if you find the defendant, Dean Victor 

Matuu, not guilty of Manslaughter, or you are unable to 

reach a unanimous verdict as to this offense, then you must 

consider whether the defendant is guilty or not guilty of 

the included offense of Assault in the First Degree.

A person commits the offense of Assault in the First 

Degree if he intentionally or knowingly causes serious 

bodily injury to another person.

There are two material elements of the offense of 

Assault in the First Degree, each of which the prosecution 

must prove beyond a reasonable doubt.

These two elements are:

1. That on or about January 24, 2015, in the City 

and County of Honolulu, State of Hawaii, the Defendant 

caused serious bodily injury to Frank Kapesi; and

2. That the Defendant did so intentionally or 

knowingly.
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“Serious bodily injury” means bodily injury which 

creates a substantial risk of death or which causes 

serious, permanent disfigurement, or protracted loss or 

impairment of the function of any bodily member or organ.

(Emphasis added.) 

With respect to the justification of self-protection, the 

circuit court’s proposed instruction began:

Self-defense is a defense to the charge of Murder in 

the Second Degree and all of its included offenses . . . . 

Self-defense involves consideration of two issues. First, 

you must determine whether the defendant did or did not use 

“deadly force.” Second, you must determine whether the 

force used was justified. If the prosecution does not meet 

its burden, then you must find the defendant not guilty.

The first issue is: Did the defendant use “deadly 

force?”

“Deadly Force” means force which the defendant uses 

with the intent of causing, or which he knows to create a 

substantial risk of causing[] death or serious bodily 

injury.

“Force” means any bodily impact, restraint, or 

confinement, or the threat thereof.

“Serious bodily injury” means bodily injury which 

creates a substantial risk of death or which causes serious 

permanent disfigurement, or protracted loss or impairment 

of the function of any bodily member or organ.

Matuu then proposed to add the following underlined language to 

the relevant remaining portion of the court’s proposed 

instruction:

If you unanimously determine beyond a reasonable doubt that 

the defendant used “deadly force,” then you are to proceed 

to the section in this instruction entitled “Deadly Force 

Used.” If you determine that the defendant did not use 

“deadly force,” or are unable to reach unanimous agreement 

on this issue, then you are to proceed to the section in 

this instruction entitled “Deadly Force Not Used.”

The circuit court refused Defendant’s proposed instruction. 
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Matuu contends that without the underlined language, e.g., 

“unanimous[ly]” or “beyond a reasonable doubt,” when the jury 

proceeded through its instructions regarding self-protection, it 

may not have unanimously determined beyond a reasonable doubt 

that the defendant had used deadly force. Matuu asserts that as 

a consequence, the jury may have therefore inappropriately 

limited the scope of justifiable acts only to those necessary to 

protect against death or seriously bodily injury;

8 had the jury 

instead been unable to unanimously agree beyond a reasonable 

doubt that deadly force had been used, then the range of 

justifiable acts would include those necessary to protect 

against any “unlawful force.”9 

This argument lacks merit. The ICA correctly noted that 

the jury was first instructed on the elements of first degree

assault, which were required to be proven by the prosecution 

beyond a reasonable doubt. See Matuu, SDO at 9. Specifically, 

the jury was required to find beyond a reasonable doubt that (1)

“Defendant caused serious bodily injury to Frank Kapesi,” and 

(2) “[t]hat the Defendant did so intentionally or knowingly.” 

 

8 “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.” 

9 “The use of force upon or toward another person is justified if the 

defendant reasonably believes that force is immediately necessary to protect

himself on the present occasion against the use of unlawful force by the 

other person.”
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As “deadly force” means “force which the defendant uses with the 

intent of causing, or which he knows to create a substantial 

risk of causing, death or serious bodily injury,” the elements 

of first degree assault inherently require a finding that 

“deadly force” was used by Matuu. Additionally, the jury was 

further instructed that the finding as to assault in the first 

degree must be unanimous. Thus, that the jury found Matuu 

guilty of assault in the first degree necessarily means the jury 

unanimously found beyond a reasonable doubt that Matuu had used 

“deadly force.” Accordingly, Matuu’s specific concern that the 

jury may not have unanimously agreed that he used “deadly force” 

lacks basis. 

2. The ICA erred in relying on the circuit court’s 

general unanimity instruction in its analysis.

We next take a closer examination of the justification 

instructions given the nature of Matuu’s issue on appeal, 

whether the justification instructions’ lack of an express 

unanimity requirement rendered the jury instructions, when 

viewed as a whole, prejudicially insufficient, erroneous, 

inconsistent, or misleading, and whether it affirmatively 

appears from the record as a whole that the error was not 

prejudicial. See Kassebeer, 118 Hawaiʻi at 504, 193 P.3d at 420. 

As provided in HRS § 702-205(b) (2014), the negativing of 

certain defenses is an element of an offense:
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Elements of an offense. The elements of an offense are 

such (1) conduct, (2) attendant circumstances, and (3) 

results of conduct, as:

(a) Are specified by the definition of the 

offense, and

 (b) Negative a defense (other than a defense 

based on the statute of limitations, lack of venue, 

or lack of jurisdiction).

HRS § 702-205. Thus, the State was required to prove beyond a 

reasonable doubt that Matuu’s self-defense or defense-of-others 

justification was “negative[d].” Id.; see HRS § 701-114 (2014) 

(“[N]o person may be convicted of an offense unless the 

following are proved beyond a reasonable doubt . . . [e]ach 

element of the offense . . . .”). 

The circuit court’s general unanimity instruction stated

that “[i]n order for the prosecution to prove an element, all 

twelve jurors must unanimously agree that the same act has been 

proved beyond a reasonable doubt.” In addition, the circuit 

court instructed the jury that “[t]he burden is on the 

prosecution to prove beyond a reasonable doubt that the force 

used by the defendant was not justified.” 

However, the general unanimity instruction required only 

that all jurors unanimously agree that the same act be proven 

beyond a reasonable doubt with respect to an “element” of an 

offense. Although negativing Matuu’s justification defenses is, 

as a matter of law, an element of Assault in the First Degree,

see HRS § 702-205(b), the circuit court did not include the 

justifications of self-defense or defense-of-others as an 
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“element” of Assault in the First Degree. The circuit court 

also did not include in the justifications instructions the 

requirement that jurors must unanimously conclude the 

prosecution had disproven the defenses beyond a reasonable 

doubt. Thus, it may not have been readily apparent to the

jurors that the general unanimity instruction regarding the 

“elements” of an offense applied to the prosecution’s negativing

of Matuu’s self-defense and defense-of-others justifications. 

The ICA did not observe that the unanimity instruction 

given by the circuit court applied only to “elements” identified 

by the circuit court, and therefore did not clearly apply to the 

negativing of Matuu’s justification defenses. To the extent the 

ICA’s SDO stated that the circuit court’s unanimity instruction

applied to the justification instructions, we now clarify the 

ICA decision.

10 

 

10 Although this court has held that a defendant was not prejudiced when 

the defenses of self and others were not included in the elements 

instructions of the charged crime, see State v. Augustin, 101 Hawaiʻi 127, 63 

P.3d 1097 (2002), as this court has stated, the right embodied in Hawaiʻi 

Rules of Penal Procedure (“HRPP”) Rule 31(a) requiring that a verdict be 

unanimous is a substantial one. See State v. Arceo, 84 Hawaiʻi 1, 33, 928 

P.2d 843, 875 (1996). To the extent the ICA’s SDO suggests that a specific 

unanimity instruction is not needed for justifications such as self-defense 

and defense-of-others warrants further examination, as this court has 

provided only limited circumstances in which a specific unanimity instruction 

is not required. See, e.g., State v. Rapoza, 95 Hawaiʻi, 22 P.3d 968 (2001) 

(concluding that a specific unanimity instruction was not required “if the 

conduct element of an offense is proved by the prosecution to have been a 

series of acts constituting a continuous course of conduct and the offense is 

statutorily defined in such a manner as to not preclude it from being a 

‘continuous offense’”).

 
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The circuit court’s instructional error, however, was not 

prejudicial. In explaining why the jury instructions, when 

viewed as a whole, were not prejudicially insufficient 

erroneous, inconsistent, or misleading, the ICA correctly noted:

In addition, “[j]ury instructions . . . must be 

considered as a whole. Moreover, a refusal to give an 

instruction that correctly states the law is not in error 

if another expressing a substantially similar principle is 

given.” Here, the court sufficiently instructed the jury 

regarding unanimity. The court first stated that in order 

to convict, the jury must unanimously agree to each element 

of the crime beyond a reasonable doubt.[

11] Then the court 

gave a general unanimity instruction.[

12] In addition, in 

the instruction for self-defense, the court instructed the 

jury that “[t]he burden is on the prosecution to prove 

beyond a reasonable doubt that the force used by the 

defendant was not justified. If the prosecution does not 

meet its burden, then you must find the defendant not 

guilty.” The additional unanimity instruction requested by 

Matuu was unnecessary.

Matuu, SDO at 10–11. As previously discussed, the circuit court 

had instructed: “The burden is on the prosecution to prove 

beyond a reasonable doubt that the force used by the defendant 

was not justified. If the prosecution does not meet its burden, 

 

11 It is not entirely clear to which specific instruction the ICA refers. 

The “presumption of innocence/reasonable doubt” instruction does not include 

unanimity language. 

12 Presumably, the “general unanimity instruction” refers to the 

instruction patterned on Instruction No. 8.02 of the Hawaiʻi Pattern Jury 

Instructions. The circuit court’s instruction stated: 

The law allows the introduction of evidence for the purpose 

of showing that there is more than one act upon which proof 

of an element of an offense may be based. In order for the 

prosecution to prove an element, all twelve jurors must 

unanimously agree that the same act has been proved beyond 

a reasonable doubt. 
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22

then you must find the defendant not guilty.”

13 The circuit 

court had also instructed the jury that “[a] verdict must 

represent the considered judgment of each juror, and in order to 

reach a verdict, it is necessary that each juror agree thereto. 

In other words, your verdict must be unanimous.” 

When these instructions are read together, a juror, who 

does not find the State to have met its burden of proving beyond 

a reasonable doubt that Matuu’s use of deadly force was not

justified, “must find the defendant not guilty.” Because 

“juries are presumed to . . . follow all of the trial court’s 

instructions,” State v. Knight, 80 Hawaiʻi 318, 327, 909 P.2d 

1133, 1142 (1996) (quoting Sato v. Tawata, 79 Hawaiʻi 14, 21, 897 

P.2d 941, 948 (1995)), each of the jurors must have unanimously 

determined that the State met its burden of proving beyond a 

reasonable doubt that Matuu’s use of deadly force was not 

justified. As such, based on the record as a whole, the circuit 

court’s instructions were not “prejudicially insufficient, 

erroneous, inconsistent, or misleading.” See Kassebeer, 118 

Hawaiʻi at 504, 193 P.3d at 420.

Thus, although the ICA did not refer to the “unanimous 

verdict” instruction, it correctly concluded that the jury 

 

13 This appears to explain in lay terms to the jury that the prosecution’s 

burden of negativing Matuu’s self-defense justification is indeed an 

“element.” However, it does not imply that the general unanimity instruction 

applies to the self-defense instruction, as the ICA appears to have 

suggested. 
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instructions, when viewed as a whole, were not prejudicially 

insufficient, erroneous, inconsistent, or misleading. See

Matuu, SDO at 11. 

The unanimity requirement as to negativing the defenses 

would have been much clearer to the jury, however, if it was 

specifically included in the instructions regarding the State’s 

burden to negative the justification defenses. We therefore 

provide guidance that the circuit courts should follow this 

practice. 

B. Substantial Evidence Supports the Negativing of Matuu’s 

Justifications of Self-defense and Defense-of-others

Matuu also argues that there was insufficient evidence to 

negative the defenses of self-defense and defense-of-others. 

This argument also lacks merit.

Once evidence of justification has been adduced, the 

prosecution has the burden of disproving it beyond a reasonable 

doubt. See State v. Culkin, 97 Hawaiʻi 206, 215, 35 P.3d 233, 

242 (2001) (citing HRS §§ 702-205(b), 703–301(1) (1993); State 

v. Lubong, 77 Hawaiʻi 429, 431, 886 P.2d 766, 768 (App. 1994)). 

The test for assessing a defendant’s self-protection 

justification pursuant to HRS § 703-304 (2014)14 involves two 

 

14 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 

(continued . . .)
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prongs because HRS § 703-300 (2014) defines “believes” as 

“reasonably believes”:

The first prong is subjective; it requires a determination 

of whether the defendant had the requisite belief that 

deadly force was necessary to avert death, serious bodily 

injury, kidnapping, rape, or forcible sodomy.

....

If the State does not prove beyond a reasonable doubt that 

the defendant did not have the requisite belief that deadly 

force was necessary, the factfinder must then proceed to 

the second prong of the test. This prong is objective; it 

requires a determination of whether a reasonably prudent 

person in the same situation as the defendant would have 

believed that deadly force was necessary for selfprotection.

Culkin, 97 Hawaiʻi at 215, 35 P.3d at 242 (quoting Lubong, 77 

Hawaiʻi at 433, 886 P.2d at 770). On appeal, Matuu argues that 

substantial evidence does not exist to support the requisite 

findings under either prong. 

As the ICA discussed, even assuming Matuu had the requisite 

belief that his use of force was necessary (prong 1), there was 

substantial evidence in the record to support a finding that a 

reasonably prudent person in the same situation as Matuu would 

not have believed that the force exercised by Matuu was

immediately necessary for self-protection (prong 2). See Matuu, 

 

(. . . continued)

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.

. . . .

HRS § 703-304.
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SDO at 6. For example, Matuu testified that he was able to 

“break free” when Kapesi intervened. Accordingly, a person of 

reasonable caution could conclude that upon “break[ing] free,” 

it was not reasonable for Matuu to then go to the kitchen, 

obtain a knife, and return to stab Frank, who was unarmed. 

Additionally, although Matuu testified he recalled grabbing only

one knife and stabbing Frank once, the autopsy report showed

Frank was stabbed multiple times and two bloodied knife blades 

were recovered — one lodged in a wound track in Frank’s chest

and another on the floor near Frank’s body. As noted by the 

ICA, a person of reasonable caution could conclude “that it was 

[not] necessary [for Matuu] to stab Frank in the torso multiple 

times to protect himself against death or serious injury.” 

Matuu, SDO at 7.

A similar two-prong subjective/objective approach is 

necessary to analyze a defense-of-others justification pursuant 

to HRS § 703-305 (2014).

15 As to prong 1, or the subjective 

inquiry, “[t]he commentary to HRS § 703–305 states that this 

 

15 Use of force for the protection of other persons. (1) 

Subject to the provisions of this section and of section 

703-310, the use of force upon or toward the person of 

another is justifiable to protect a third person when:

 (a) Under the circumstances as the actor believes 

them to be, the person whom the actor seeks to protect 

would be justified in using such protective force; and

 (b) The actor believes that the actor’s intervention 

is necessary for the protection of the other person.

. . . .

HRS § 703-305.
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section ‘permits a person to use force to protect another person 

when [(a)] the actor believes the other person would have been 

justified in using force to protect himself and [(b)] he 

believes that his intervention is necessary to protect the other 

person.’” State v. Mark, 123 Hawaiʻi 205, 220, 231 P.3d 478, 493 

(2010) (emphasis in original) (footnote omitted). Prong 2, or 

the objective inquiry, is necessary because, as noted 

previously, “believes” means “reasonably believes.” HRS § 703–

300. 

The ICA’s analysis of whether sufficient evidence was 

presented to negative Matuu’s defense-of-others justification

focused solely on prong 1(a). It first states that the jury may 

have simply believed Kapesi’s testimony over Matuu’s. Thus,

with respect to prong 1(a), the jury could have concluded that 

“although Frank slammed Kapesi to the ground, Frank did not hit 

Kapesi and Kapesi had regained his wind and was on his feet 

trying to keep Frank and Matuu apart when Frank was stabbed.” 

Matuu, SDO at 7. Accordingly, “the jury was well within its 

province to conclude that the evidence proved beyond a 

reasonable doubt that Kapesi would not have been justified in 

stabbing Frank under these circumstances.” Matuu, SDO at 7–8. 

In other words, a person of reasonable caution could have relied 

on Kapesi’s testimony (and disbelieved Matuu’s testimony) that 

Frank did not punch Kapesi when Kapesi intervened in the January 
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24, 2015 altercation, and therefore conclude that Matuu did not

have the requisite subjective belief that Kapesi would have been 

justified in stabbing Frank. 

Similarly, with respect to prong 1(b), substantial evidence 

supports the conclusion that Matuu did not actually “believe 

that [his] intervention [wa]s necessary for the protection” of 

Kapesi. See HRS § 703-305(b). For example, as stated 

previously, a person of reasonable caution could have concluded 

that Frank did not punch Kapesi after Kapesi attempted to 

separate Frank and Matuu, and therefore Matuu did not believe it 

was necessary for him to intervene. 

A person of reasonable caution could also have concluded 

that even if Frank had punched Kapesi on January 24, 2015, Matuu 

was nevertheless unconcerned with Kapesi’s well-being. At 

trial, Matuu testified that because he was “scared” Frank would 

target him after Frank was “done with” Kapesi, he needed to 

“protect[] himself” by grabbing a knife from the kitchen. 

However, Matuu also testified that after stabbing Frank, Matuu 

said to Frank: “I told you, bro. I told you to stop, but you 

was pushing me, and you was bothering me, and you was telling me 

you was going beat me up and put me in the hospital.” Because

Matuu said nothing about Frank punching Kapesi, and nothing in 

Matuu’s testimony showed he was otherwise concerned with 

Kapesi’s well-being, a person of reasonable caution could have 
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concluded that Matuu was not concerned about Kapesi, and 

therefore conclude that Matuu did not believe that he needed to 

use force against Frank to protect Kapesi.

Yet, even if it were assumed that both parts of prong 1 

were satisfied – that Matuu had the requisite subjective belief 

that (a) Kapesi would have been justified in using force to 

protect himself against Frank, and (b) Matuu’s intervention was 

necessary to protect Kapesi — there was sufficient evidence to 

support a jury’s finding as to Prong 2, i.e., that Matuu’s 

belief was not “reasonable.” 

Evidence shows that Kapesi was not afraid of Frank despite

being punched by him on a previous occasion and requiring 

stitches; Kapesi voluntarily came out of his room to stop Frank 

and Matuu’s fight even though Frank was “high on drugs”; and the 

only injury Kapesi appeared to have suffered from the incident 

was a stab wound to the hand caused by Matuu. Thus, a person of 

reasonable caution could have concluded that Kapesi would not 

have been justified in stabbing Frank multiple times to protect 

himself against Frank’s punches, or that Matuu’s intervention 

was necessary to protect Kapesi, and therefore, any subjective 

belief Matuu may have had was not reasonable. 

V. Conclusion

For the foregoing reasons, we affirm the ICA’s November 17, 

2017 Judgment on Appeal entered pursuant to its SDO. The ICA 
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29

correctly concluded that Matuu’s conviction was supported by 

substantial evidence and that the circuit court’s jury 

instructions were not prejudicially erroneous or misleading. 

However, we provide guidance that the requirement for unanimity 

should specifically be included in justification instructions. 

Jon N. Ikenaga /s/ Mark E. Recktenwald

for petitioner

/s/ Paula A. Nakayama

Stephen K. Tsushima 

for respondent /s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson