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State v. Jardine11/25/2002
Defendant-Appellant Kainoa Jardine (Jardine) appeals from the judgment entered on April 20, 2001 by the Family Circuit Court for the First Circuit (the family court), convicting and sentencing him, upon a jury verdict, for abuse of a family or household member, in violation of Hawaii Revised Statutes (HRS) § 709-906 (Supp. 2001).
Because we conclude that (1) the family court plainly erred in giving the jury an instruction on the "choice of evils" defense that incorporated common law limitations on the defense that were expressly rejected by the Hawaii Supreme Court in State v. Maumalanga, 90 Hawaii 58, 976 P.2d 372 (1998); and (2) the family court's error was not harmless, we vacate the judgment and remand for further proceedings consistent with this opinion.
BACKGROUND
At about 6:10 p.m. on the evening of February 8, 2001, Jardine was driving his mother's blue Toyota Corolla (the Corolla) on Farrington Highway, headed to a friend's house in Ma'ili. Monica N. Bradbury (Bradbury), his girlfriend of three years who was then six months pregnant with his child, was seated in the front seat of the Corolla. Shortly after the couple arrived at their destination at around 6:20 p.m., they were met by Honolulu Police Department (HPD) Officer Steven Posiulai (Officer Posiulai), who told them that HPD had received information that a male driving a car matching the Corolla's description had been seen hitting a female passenger while the car was in motion. Bradbury told Officer Posiulai that Jardine had hit her and pulled her hair. Jardine was then arrested and charged with committing the offense of abuse of a family or household member, in violation of HRS § 709-906 (Supp. 2001), which states, in relevant part:
Abuse of family or household members; penalty. (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter.
For the purposes of this section, "family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.
At trial, two witnesses testified for the prosecution. Bradbury testified that on the evening in question, she and Jardine were headed toward Waianae to meet some friends for dinner and then a softball game. They got into an argument, which turned physical when she tried to open the car door while the car was moving. According to Bradbury, she was "mad" and pretended to jump out of the car about four times. However, Jardine "tried to stop from jumping out by pulling hair." Bradbury insisted that Jardine did not hit her or do anything violent other than prevent her from jumping out of the car by pulling her hair and/or neck. She also testified that when "the police officers came" and asked her some questions, she told Officer Posiulai what Jardine had done but "never told him what did."
Regarding a written statement form that she had signed in Officer Posiulai's presence on the night in question, Bradbury testified, in response to questioning by the deputy prosecutor, as follows:
A: [Officer Posiulai] gave me a blank statement and just -- he said to write out the statement. And I was gonna write it out, but he said, "Oh, you're not going to be in the right state of mind, so I'll just fill it out for
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