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State v. Lui11/21/1979
Appellant, Abel Simeona Lui, charged with murder for the shooting death of Don Anthony Gomes, was convicted by a jury of manslaughter on April 11, 1977.
Appellant claimed self-defense under our statutory scheme of justification. From his conviction, he appeals.
On July 7, 1976, several hours before the homicide, at the end of a fist fight between the parties, appellant claimed deceased threatened him: "I'm going to blow your f head."
Following the fight, appellant went to his mother's home, armed himself with a handgun and returned to the scene of the fight.
While talking to a friend who was in a parked automobile, appellant observed deceased approaching his direction from the opposite side of the street. He then disengaged his conversation, headed toward deceased and shot him while approximately 10 feet away. Appellant testified he thought deceased was reaching for a gun. Deceased was in fact unarmed.
The trial court did not admit into evidence: (1) testimony of appellant that he knew, at the time of the homicide, that deceased had beaten and raped a 13-year-old girl; (2) testimony of the police officer who arrested deceased for the rape and who personally interviewed the complainant; and (3) deceased's conviction record of assault in the third degree, criminal property damage in the third degree and driving under the influence of intoxicating liquor.
Appellant now claims he was denied his right to present evidence when the court refused to admit character evidence on specific acts of prior violence committed by deceased.
I. ADMISSIBILITY OF DECEASED'S PRIOR VIOLENT ACTS
Under common law, a defendant who claims self-defense to a charge of homicide is permitted to introduce evidence of the deceased's violent or aggressive character either to demonstrate the reasonableness of his apprehension of immediate danger or to show that the decedent was the aggressor. State v. Jacoby, 260 N.W.2d 828 (Iowa 1977), Annot., 1 A.L.R. 3d 571 (1965). And, where character evidence is offered to show the reasonableness of the defendant's apprehension, he must lay a foundation, prior to the admission of the evidence, that he knew at the time of the homicide of the deceased's reputation or of the specific acts of violence committed. This foundation is required because the evidence is probative of the defendant's state of mind, showing his belief or corroborating his knowledge as to the deceased's character and tending to
prove that he acted as a reasonably prudent person would under similar beliefs and circumstances. See, Ibid, McMorris v. State, 58 Wis.2d 144, 205 N.W.2d 559 (1973). Accord, Territory v. Aquino, 43 Haw. 347 (1959). But, the foundation is not required where the factual issue is to determine the aggressor. State v. Jacoby, supra. Proof of the deceased's violent and turbulent character in this situation is circumstantial evidence of the likelihood of his being the aggressor and of the absence of provocation on the part of the defendant.
Although Hawaii's laws on justification supersede the common law defense of self-defense, nevertheless, the common law rules on character evidence are applicable.
Deceased's conviction record was properly excluded. Absent the required foundation that appellant knew of each of the specific events of the conviction at the time of the homicide, it was inadmissible as proof of the reasonableness of his belief that deadly force was immediately necessary. Appellant's testimony as to his
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