Haw. Pattern Jury Instr. (Criminal) 7.18A

“DEADLY FORCE” IS AT ISSUE

The use of force in the defense of property is a defense to

the charge(s) of (specify charge and its included offenses).

The use of force in defense of property 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.

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/she 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.

[Intentionally firing a firearm in the direction of another

person or in the direction which the person is believed to be

constitutes deadly force.]

[A threat to cause death or serious bodily injury, by the

production of a weapon or otherwise, so long as the actor’s

intent is limited to creating an apprehension that he/she will

use deadly force if necessary, does not constitute deadly

force.]

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.

Deadly Force Used

The use of deadly force upon or toward another person in

defense of property is justified only if the defendant

reasonably believes that such force is immediately necessary

because:

[the person against whom the deadly force is used is

attempting to dispossess the defendant of his/her dwelling

other than under a claim of right to its possession] [the

person against whom the deadly force is used is attempting

to commit [felony property damage] [burglary] [robbery]

[felony theft]* and:

[that person used or threatened deadly force [against

the defendant] [in the defendant’s presence]]

[the use of force other than deadly force by the

defendant to prevent [felony property

damage][burglary][robbery][felony theft] would expose

the defendant or another person in the defendant’s

presence to a substantial risk of serious bodily

injury.]]

The reasonableness of the defendant’s belief that the use

of protective deadly force in defense of property was

immediately necessary shall be determined from the viewpoint of

a reasonable person in the defendant’s position under the

circumstances of which the defendant was aware or as the

defendant reasonably believed them to be when the deadly force

was used.

Deadly Force Not Used

The use of force upon or toward another person in defense

of property is justified if the defendant reasonably believes

that such force is immediately necessary:

[To prevent criminal trespass or burglary* in a building or

upon real property in the defendant’s possession, or in the

possession of another person for whose protection the

defendant acts]

[To prevent unlawful entry upon real property in the

defendant’s possession, or in the possession of another

person for whose protection the defendant acts]

[To prevent theft, criminal mischief, or any trespassory

taking of,* any tangible movable property in the

defendant’s possession, or in the possession of another

person for whose protection the defendant acts.]

The reasonableness of the defendant’s belief that the use

of protective force in defense of property was immediately

necessary shall be determined from the viewpoint of a reasonable

person in the defendant’s position under the circumstances of

which the defendant was aware or as the defendant reasonably

believed them to be when the force was used.

The defendant may use such force as he/she believes is

necessary to protect the threatened property, provided that the

defendant first requests that the person stop the interference

with the property. However, the defendant need not make such a

request if the defendant reasonably believes:

[Such a request would be useless]

[It would be dangerous to the defendant or another person

to make the request]

[Substantial harm would be done to the physical condition

of the property that is sought to be protected before the

request could effectively be made.]

[The use of confinement as protective force is justifiable

only if the defendant takes all reasonable measures to terminate

the confinement as soon as he/she knows that he/she can do so

with safety to the property, unless the person confined has been

arrested on a charge of crime.]

For Offenses Where the Requisite State

of Mind is Reckless or Negligent

[The use of force upon or toward another person in defense

of property is not available for the offense(s) of (specify any

offense in which the requisite state of mind is either

recklessness or negligence) if the prosecution proves:

(1) The defendant was reckless in believing that he/she

was justified in using deadly force or force in

defense of property; or

(2) The defendant was reckless in acquiring or failing to

acquire any knowledge or belief which was material to

the justifiability of his/her use of deadly force or

force in defense of property.]