Lindani Myeni: The Honolulu Prosecuting Attorney report

STEVEN S. ALM

PROSECUTING ATTORNEY

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THOMAS J. BRADY
FIRST DEPUTY PROSECUTING ATTORNEY

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PROSECUTING ATTORNEY, HONOLULU, HAWAII

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Department of the Prosecuting Attorney City and County of Honolulu

Officer-Involved Shooting Report No. 2021-02
Report Date: June 30, 2021

Independent Investigation of Officer-Involved Shooting of Lindani Sanele Myeni

91 Coelho Way, Honolulu, Hawai‘i, April 14, 2021

I. OBJECTIVE

The objective of the Department of the Prosecuting Attorney’s (PAT) independent investigation is to assess the viability of a criminal prosecution of Honolulu Police Department (HPD) officers REDACTED and REDACTED (Officers 1 and 2, respectively) for any criminal offense under the Hawaiʻi Penal Code (HPC) for their intentional use of deadly force on April 14, 2021 at 91 Coelho Way. In making this assessment, the proof beyond a reasonable doubt standard will be used.

This investigation considered materials and information provided by HPD and accumulated by the PAT’s independent efforts. PAT Investigator REDACTED (Investigator REDACTED ) was this office’s primary investigator.

This investigation offers no opinion whether the officers complied with HPD policy or whether non-compliance with any HPD policy subjects them to administrative discipline.

II. FACTS

A. General Background

The incident occurred on Wednesday, April 14, 2021, between approximately 8:07 – 8:15 p.m. at 91 Coelho Way, in Nuʻuanu.1 This is a large property. The home measures 7,430 square feet and features four bedrooms, five full bathrooms, and two half bathrooms.2 A short rock wall faces the street. A wrought iron fence is affixed to the top of the wall. A semi-circular driveway leads to a porte cochere outside the front door. There are two entrances to the driveway along Coelho Way: one on the west and one on the east.

As of April 14, 2021, REDACTED owned and lived in the residence. At the time of the incident the following were REDACTED’s tenance: REDACTED and his girlfriend REDACTED and REDACTED. REDACTED (Witness 1) and her husband REDACTED (Witness 2) rented space in the residence from March 17, 2021.3

ISKCON Hawaii, Inc., a Hare Krishna temple (the temple), is located nearby at 51 Coelho Way.4

B. Sunset and Weather

Sunset was at 6:50:56 p.m.5 There was a light drizzle at the time of the incident.6

C. Participants in the Event

1. The Civilians

Witness 1 is a freelance website applications designer. Witness 2 is a Facebook software engineer. Based on their recorded interviews, Body Worn Camera (BWC) video, and Ring video, English is not the first language for either; however both speak English proficiently.

REDACTED, REDACTED , and REDACTED were not at the residence at the time of the incident and have no personal knowledge of the relevant events.

2. Lindani Sanele Myeni

i. Entry into the United States

Lindani Sanele Myeni (Myeni) (DOB: REDACTED )7 entered the United States on January 9, 2020, via JFK airport in New York State. He was on a tourist visa at the time of entry. This visa expired on July 8, 2020, but Myeni had an application in process for a work visa.

ii. In Hawaiʻi

Myeni, his wife REDACTED, and their children moved to REDACTED, Honolulu, in or around February 2021. The landlord, REDACTED confirmed that the family moved out at the end of April 2021.8 REDACTED REDACTED is is approximately 0.8 miles from 91 Coelho Way.

While living at REDACTED , Myeni drove a 2015 four-door Mazda 3 sedan (the Mazda) with Texas license plates REDACTED .

REDACTED, a neighbor who lives at REDACTED , told Investigator REDACTED that he frequently saw Myeni. REDACTED ’s flag lot gave him a direct view of REDACTED. On most afternoons at approximately 3:30 p.m., Myeni would go to his second floor lanai and smoke marijuana. REDACTED described Myeni as a strange person who would, at times, stand in the backyard at sunset for over an hour while chewing on a sugar cane stalk and staring up at the sky. REDACTED did not hear any arguments from the Myenis; they were generally quiet.

While on Oʻahu, Myeni expressed in kickboxing. REDACTED is a professional fighter and martial arts instructor at REDACTED in Kailua. At the time of his April 21, 2021 interview with HPD, REDACTED had known Myeni for 3 ½ to 4 months. They met in Waikiki, where REDACTED often surfed. Myeni expressed interest in training and attended REDACTED ’s Monday night, one-hour kickboxing class. These classes were intended for sport, not self-defense. Myeni, a beginner, attended five sessions. REDACTED last saw Myeni on Monday, April 12, 2021. Myeni came with his son. Myeni said that he wanted to speak with REDACTED in person. According to REDACTED , Myeni said he was going through some emotional and something along the lines of “crazy African spiritual stuff.”

3. The Police Officers9

i. Officer 1

Officer 1, age 49, has been employed as an HPD officer since February 19, 1998. He has 23 years of service. His assignments have been as follows:

START DATE	END DATE	LOCATION
2/19/98	3/16/99	TRP Training
3/16/99	9/17/00	Central Receiving Division
9/17/00	10/10/04	District 2
10/10/04	6/19/05	District 4
6/19/05	9/1/17	District 8
9/10/17	Present	District 5

Based on the use of force records (UOF records) provided by PSO, Officer 1 has no prior history of use of deadly force.10

ii. Officer 2

Officer 2, age 46, has been employed as an HPD officer since February 27, 2003. He has 18 years of service. His assignments have been as follows:

START DATE	END DATE	LOCATION
2/27/03	10/1/04	TRP Training
10/1/04	8/26/07	District 5
8/26/07	5/29/16	Traffic Division, Solo Bike
5/29/16	11/18/18	District 5, S/A Records Division
11/18/18	3/10/19	District 1
3/10/19	9/20/20	District 2
9/20/20	Present	District 5

Based on the UOF records provided by PSO, Officer 2 has no prior history of use of deadly force.11

iii. REDACTED (Officer 3)

Officer 3, age 40, has been employed as an HPD officer since February 1, 2011.

He has ten years of service. His assignments have been as follows:

START DATE	END DATE	LOCATION
2/1/11	6/24/12	TRP Training
6/24/12	5/26/13	CRD
5/26/13	3/21/21	District 6
3/21/21	Present	District 5

Based on the UOF records provided by PSO, Officer 3 has no prior history of use of deadly force.12

Officer 1, Officer 2, and Officer 3 qualify as law enforcement officers as defined by HRS § 701-118.13

D. Factual Narrative for April 14, 2021

1. Left the House

On April 14, 2021, Myeni resided at REDACTED . According to his wife, REDACTED, he left that residence at approximately 7:15 – 7:30 p.m. to “clear his head.”14

2. HPD Report No. 21-158432 (UEMV 1 Investigation)

Patrol officers REDACTED,

, REDACTED , REDACTED, REDACTED and REDACTED (Officers A, B, C, and D, respectively) were among several officers who responded to Kewalo Basin to investigate an unauthorized entry into motor vehicle in the first degree (UEMV) complaint made by complainant REDACTED . These officers had BWC.

At 7:42 p.m., Officer C was sent via dispatch to 1125 Ala Moana Boulevard on the UEMV complaint.15 He arrived shortly thereafter.16 Upon arrival at the scene, Officer C took REDACTED ’s statement and scene photographs.17 REDACTED reported that earlier in the day, someone had entered his white 2006 Subaru Legacy wagon (Subaru) without permission, while it was parked near the intersection of Ekela Avenue and Date Street, and took his money and identification and bank cards.18

The incident was reported away from the scene.19 Accordingly, no diagram was made.20 No fingerprints were recovered because (1) the incident was reported away from the scene and (2) REDACTED had gone through, touched, and organized the contents of his vehicle.21

As Officer B spoke with REDACTED , Myeni walked up to the police and said, “Hi. How you guys doing?”22 In response, Officer B said that the police were investigating a case.23 Myeni asked, “Is everything okay? What’s wrong?”24 Officer B explained that REDACTED’s car had been broken into.25 Myeni asked, “What was stolen?”26 Turning to his attention to REDACTED , Myeni asked, “Did you lose anything, sir?”27 Officer B informed Myeni that the police would handle it.28 Myeni approached REDACTED .29 REDACTED said, “Howzit, brah. I don’t even know you, bro. What are you doing? Get away from me, man.”30 Thereafter, Myeni walked away.31 Myeni came back and asked REDACTED for five dollars.32 REDACTED said that he did not have money.33 Myeni apologized and touched REDACTED.34

After Officer C had obtained REDACTED’s initial information, he returned to his patrol car for follow-up investigation.35 Myeni stood on the driver’s side of Officer C’s patrol car and the two engaged in a brief conversation.36 As Officer C sat in his car, Myeni approached him and asked him for five dollars for food; he wanted a meal.37 Officer C said he did not have cash.38

Later during the UEMV investigation, Officer C’s BWC records Myeni driving the Mazda past the rear of the Subaru. Myeni tooted his horn.39 Officer C commented about the request for money for a bento.40 One officer commented that Myeni tried to get into his patrol car.41 Another commented that the Mazda’s lights were not on. Someone speculated that Myeni “was on something.”42

Officer D was present during the aforementioned UEMV investigation. In a miscellaneous public report submitted under HPD report no. 21-162831, Officer D reported that while he was at the scene seated in his marked HPD vehicle, a male approached and attempted to get in the back seat. Officer D asked what he was doing and the male responded, “I was walking this way and I thought I should get in.” Officer D instructed the male to back away. He did so and walked towards his own vehicle.

The male turned around, approached Officer D, and stopped 1-2 feet away. Officer D instructed the male to back up at least six feet and to get a facemask. The male walked towards his own vehicle. The male returned again and stated that he needed help contacting someone but then stated he did have the phone number and his own phone.

He made a phone call and left the area. Officer D made the report to document the male’s strange behavior and his (Officer D’s) belief that the male may have been involved in the officer-involved shooting.

GPS data obtained from Myeni’s phone confirms his presence at Kewalo Basin.43 This data also maps Myeni’s route from the basin to 91 Coelho Way. His route was as follows: (1) he exited the basin via Ward Avenue; (2) he headed mauka on Ward Avenue and made a left turn onto Kapiʻolani Boulevard; (3) he traveled west along Kapiʻolani Boulevard and made a right turn onto Alapai Street; (4) he traveled mauka along Alapai Street and made a left turn onto Beretania Street; (5) he traveled west along Beretania Street until he made a right turn onto Punchbowl Street; (6) he traveled mauka along Punchbowl Street until Lunalilo Freeway; (7) he got off Lunalilo Freeway and onto Pali Highway; (8) he traveled north along Pali Highway and got off at the Wyllie Street off-ramp; (9) he traveled along Wyllie Street; (10) he made a right turn at Burbank Street; (11) he then made a right turn onto Coelho Way; and (12) he arrived at 91 Coelho Way.

3. HPD Report No. 21-158469 (Officer-Involved Shooting at 91 Coelho Way)

a. The Patrol Officers

On April 14, 2021, Officers 1, 2, and 3 were assigned to District 5, third watch patrol.44 The stated mission for their shift that day was “UEMV and burglary prevention.”45

Officer 1 was assigned to patrol beat 3M572.46 He wore his class A uniform.47 He wore a short-sleeve uniform shirt.48 He drove a subsidized vehicle, a 2015 Toyota MPVH, with Hawaiʻi license plate REDACTED .49 Officer 1 carried a Glock, model 17 (Gen4) semiautomatic pistol with serial number WST 437.

Officer 2 was assigned to patrol beat 3M573.50 He drove a subsidized police vehicle, a 2015 four-door Dodge, with Hawaiʻi license plate REDACTED , with a blue light affixed to the roof.51 He wore his class A uniform.52 Officer 2 carried a Glock, model 17 (Gen4) semiautomatic pistol with serial number WST 431.

Officer 3 was assigned to patrol beat 3M569.53 He drove a marked police vehicle, HPD 1562.54 He wore his class A uniform.55 He wore a long-sleeved top with police insignia.56 Officer 3 carried a Glock, model 17 (Gen4) semiautomatic pistol with serial number WST 697. He also had a Taser.

b. The Officer-Involved Shooting

Witness 1 and Witness 2 went to the Apple Store at the Ala Moana Shopping Center to return a drone.57 Witness 1 drove a gray Jeep, an Avis rental. Their return route home was as follows: north along Pali Highway; Wyllie Street; right on Burbank Street; and right again on Coelho Way.58

Witness 1 noticed that a car followed them.59 Due to the close proximity of the car behind her Jeep, she thought it was REDACTED l.60 She entered the driveway through the west entrance and parked on the grass.61 The car that followed her parked immediately behind the Jeep.62 This car was the Mazda.63 Myeni was the driver.64 There were several cars parked in the front yard of the property. A VW bus was parked in the porte cochere facing east, immediately outside the front door.

Both Witness 1 and Witness 2 made their way to the front door—Witness 2 first, and then followed by his wife.65 Myeni followed closely behind.66 He wore a black polo shirt, blue jeans, socks, shoes, and a feathered headband.67 He removed his shoes near a column and entered the residence.68 Witness 1 said she had left the front door ajar on the belief that REDACTED was behind her.69 Myeni entered the front door.70

Witness 1 was in the residence foyer when Myeni entered. She confronted him: “Who are you? Why are you here?”71 Myeni identified himself by name72 and responded with bizarre statements. First he said, “I have videos of you. You know why I’m here.”73 Puzzled and frightened, Witness 1 replied, “I don’t know. I have nothing. You should leave.”74 Witness 1 thought Myeni was attempting to extort her. “Are you blackmailing me?” she asked.75

Myeni proceeded to make bizarre statements that frightened Witness 1 and Witness 1. Myeni sat in a chair in the foyer and said he lived there.76 “Are you a friend of REDACTED ?” she asked.77 A house cat approached Myeni. He pet the cat and claimed ownership of the feline: “This is my cat.”78 He also said that he lived in the neighborhood.79

Witness 2, meanwhile, called homeowner REDACTED , who was in Waikiki, and explained what was happening.80 the hallway.82 REDACTED denied knowing Myeni.81 Myeni walked down the hallway.

Witness 1 asked him to leave several times, threatening to call 911 if he didn’t.83 She produced her phone and showed it to him.84 Myeni stated, “Tell them I’m from South Africa. I’m on a hunt. I’m on a safari.”85 Myeni lowered his feathered headband and said, “We’re hunting. There’s no time.”86 These bizarre statements further alarmed Witness 1. She interpreted this as a threat, i.e., she and her husband were the hunted prey and he was the hunter.87 Myeni commented that he was not afraid of the police and that he would sleep outside.88

Witness 2 heard Myeni say that he had nowhere to go and his people were suffering.89

At 8:09:43 p.m., Witness 1 called 911 and remained on the line for 13 minutes and 40 seconds.90

Based on information provided by Witness 1, HPD dispatch made the following relevant radio calls to patrol officers in the area:

20:11:03

The dispatcher asked 972 (Officer 1) if he could investigate a reported burglary at 91 Coelho Way. The caller, who was still on the line, reported that she found a male in her house. The dispatcher asked 973 (Officer 2) if he could help 972 (Officer 1).

20:12:23

The dispatcher described the suspect as an African American male wearing straight black jeans. The caller was on the line and there was a language barrier. The dispatcher addressed 972 (Officer 1), 973 (Officer 2), and 69 (Officer 3).

20:13:30

The dispatcher addressed 72, 73, and 69 and stated that the call taker was crying and not answering questions. The male was blocking the door and she could not get inside.

Ring video, BWC video, Witness 1’s 911 call, and witness statements, taken together, illustrate the events that followed.

As Myeni exited the residence, he turned back and asked, “What’s wrong?”91 Witness 1 (who is not visible in the Ring video) retorts, “Who are you?”92 Myeni, who is standing in or near the threshold, while facing into the residence, asks, “Can I see your phone?”93

Myeni eventually exited the residence, put on his shoes, gestured towards the front door, and walked around the front of the VW bus.94 While looking back at the residence, Myeni said, “Sorry.”95 Based on the soft-spoken tone and volume of this statement, coupled with Witness 1’s excited condition, it is unlikely either Witness 1 or Witness 2, both of whom were inside the residence, heard what Myeni said.

Witness 1 exited the residence with her phone pressed to her right ear.96 She looked towards Coelho Way in the direction where the Mazda was parked.97 The Mazda’s dome light was on; this allowed Witness 1 to see Myeni seated in the car.98 Witness 1 told the dispatcher, “I’m so afraid to go outside.”99

Officers 1, 2, and 3 responded. Of these three, Officer 1 was the first officer to arrive at the scene. Officer 1 approached from the east and parked near the east entrance along Coelho Way.100 He did not engage his siren and his blue lights were not flashing.101 Officer 1 heard the following dispatch addressed to beats 72 (Officer 1), 73 (Officer 2), and 69 (Officer 3): “For the caller, she was crying and wasn’t answering any questions. Male is blocking the door. Saying she cannot go inside.”102 Officer 1 rolled up his window, got out of his car, and entered the property through the east entrance.103

Witness 1 was still on the phone. She acknowledged the arrival of Officer 1’s car.104 Witness 1 reported that “he (Myeni) is still in the community” and referenced “the police officer.”105 Witness 1 was crying and unquestionably upset.106

Officer 2 heard a dispatch that a caller returned home and there was an unknown male in the residence.107 While en route, Witness 2 heard updated dispatch that the caller was on the line and that the male refused to leave.108 The caller described the male as African American, who was dressed in a black shirt and jeans.109

Upon his arrival at the scene, Officer 2 saw Officer 1 enter through the east entrance on foot.110 Officer 2, meanwhile, entered through the west entrance on foot.111 Witness 1 saw Officer 2 enter the property.112 Myeni got out of the Mazda.113

As Officer 2 passed through an opening in the front wall of the property, Myeni approached him from behind.114 Officer 2 asked Myeni what was going on.115 Myeni replied, “I don’t know. You tell me.”116

At 8:13 p.m., Officer 3 responded to the burglary in progress report.117 While en route he heard an updated suspect description of an African American male wearing a dark-colored shirt and jeans who had entered the residence.118 He arrived at 8:14

p.m.119 Officer 3 got out of his car and entered the property on foot through the west entrance.120

Officer 1 held a flashlight, which he pointed toward the front entry to the residence.121 Witness 1 stood outside the front door.122 “Where he went?” Officer 1 asked.123 She was excited and distressed. She responded, “That’s him.”124 He again asked, “Where he went?”125 She pointed in the direction of Coelho Way and exclaimed, “That’s him! He’s still in the car.”126 Officer 1 asked “Where?” as he made his way around the VW bus.127 Witness 1 is overheard crying.128 “That’s him! That’s him!

That’s him!” she cried.129 As Officer 1 rounded the turn, now heading towards Coelho Way, he began to ask, “Where …” He then yelled, “Get on the ground now!” “Get on the ground! Get on the ground now!” 130 Witness 1 went back inside the house.131

Myeni came into Officer 1’s view.132 He wore a dark shirt, blue pants, and shoes.133 His appearance and clothing matched the description that was broadcast over dispatch.134 Officer 1 held his service firearm in his right hand, with his arm extended.135 Officer 1 again yelled, “Get on the ground! Get on the ground now!”136

Myeni refused to comply.137 Without warning, Myeni went directly at Officer 1, who was standing near the bend of the driveway on the west side of the property.138 Officer 3 and Officer 2 saw Myeni attack Officer 1, striking Officer 1 to the head and body area.139 Myeni said something indiscernible. This assault moved into the front yard, near a Toyota Prius, Hawaiʻi license plate RPB 340 (the Prius), parked on the grass in front of the residence.140

Officer 3 yelled, “Taser! Taser! Taser! Taser!”141 He drew his Taser, pointed it at Myeni, and deployed one shot, which was ineffective.142 Myeni charged at Officer 3 and punched him with closed fists.143 Myeni continued to attack Officer 3 while he was on the ground.144 Officer 2 attempted to take Myeni to the ground but was unsuccessful.145

Myeni redirected his attention to Officer 1.146 Officer 3 stood up.147 Myeni resumed his attack on Officer 1.148 Officer 1 discharged his service firearm once.149 Myeni took Officer 1 to the ground and repeatedly punched him to the face and head.150

As Myeni punched Officer 1, Officer 2 removed his service firearm, pointed it at Myeni, and commanded him to stop.151 Officer 2 discharged his service firearm three times.152 Officer 2 described his thought process as follows:

I was afraid that the male was going to kill [Officer 1] if he continued to strike him. I also believed that [Officer 3] was injured or incapacitated. I was also concerned the suspect may have gained control of [Officer 1’s] service firearm since he had un-holstered it and was holding it in his hand when he was attacked by the male.

Approximately five seconds elapsed between the first gunshot and the three-shot volley.153 Shortly after the Officer 2’s three-shot volley someone shouted, “Police!”154

Approximately 30 seconds elapsed from Officer 1’s first command to “Get on the ground!” to Officer 2’s three-round volley.155

Myeni lay face down on the ground. He was handcuffed and rolled onto his back. Officers attempted first aid on Myeni. They applied the AED and performed CPR compressions.156 EMS arrived at 8:25 p.m.157

After Myeni was handcuffed, Officer 2 checked Officer 1.158 His face was bleeding.159 Officer 1 said that he was missing his service firearm.160 Officer 1 said that Myeni pulled his service firearm.161 Officer 2 found Officer 1’s service firearm on the grass, near where he had been assaulted.162 The firearm’s slide was locked back in the open position.163

EMS left the scene at 8:38 p.m. and arrived at The Queen’s Medical Center (QMC) at 8:46 p.m.164 Dr. REDACTED pronounced Myeni dead at 8:49 p.m.165

Officer 2 intentionally discharged his service firearm.166 The discharge was not accidental.

As of this writing Officer 1 has not prepared a formal statement. For purposes of this analysis, it will be assumed that he intentionally discharged his service firearm.

There is no evidence that racial animus towards Myeni prompted the officers’ use of deadly force.

E. Myeni’s Cause of Death, Recovered Evidence, and Toxicology Results

On April 15, 2021, REDACTED, MD, PhD (Dr. REDACTED), Chief Medical Examiner for the Department of the Medical Examiner, City and County of Honolulu, performed the autopsy at the ME’s Facility located at 835 Iwilei Road.

1. Cause of Death

The cause of death was multiple gunshot wounds.

2. Gunshot Wounds

Dr. REDACTED documented four gunshot wounds (GSW): three to the torso and one to the right lower extremity. Each GSW is summarized below.167

a. GSW #1

GSW #1 was of indeterminate range that entered the right medial chest. The bullet fractured the right 3rd rib, lacerated the right lung, and fractured the 9th rib posteriorly. Blood filled the right chest cavity. The projectile came to rest under the skin on the right back.168 The right lung was the only structure affected.

The wound track was front to back, left to right, and downward.

At the time of autopsy, only 50 cc of blood remained in the right chest cavity.

b. GSW #2

GSW #2 was of indeterminate range that entered the left lateral chest. The bullet did not injure the left lung but it perforated the diaphragm and entered the peritoneal cavity. The bullet fractured the left 8th and 9th ribs, lacerated the spleen and perforated the left kidney. The bullet caused a fracture in the lumbar spine and came to rest under the skin near the spine.169

The wound track was front to back, left to right, and downward. There was approximately 1500 cc of blood in the left chest cavity.

c. GSW #3

GSW #3 was of indeterminate range that entered the right medial shoulder. The bullet fractured the right 2nd rib posteriorly, lacerated the right lung, fractured the 9th and 10th ribs posteromedially, exited the chest cavity, and stopped under the skin under the right lumbar area.170

The wound track was front to back, right to left, and steeply downward.

Associated injuries include a right hemothorax with approximately 50 cc of blood at the time of autopsy.

d. GSW #4

GSW #4 was of indeterminate range that entered the right anterolateral distal thigh. The bullet caused deep soft tissue injuries but did not cause any bone fractures. GSW #4 exited the back of the thigh and reentered the right posterior proximal leg. The bullet proceeded into the muscle tissue and stopped in the distal lower leg.171 The bullet did not cause any bone fracture or major vascular injury.

The wound path was front to back and slightly downward. The wound path suggests that the bullet entered the right leg while it was bent at the knee.

3. External Injuries

Dr. REDACTED documented minor blunt force injuries as follows: (1) two small abrasions to the right fifth finger; (2) two small abrasions to the back of the left elbow;

(3) multiple abrasions within three centimeters on the right front knee; (4) a small abrasion in the front of the left proximal lower leg; and (5) a small abrasion on the dorsal surface of the left first metatarsophalangeal joint area.

4. Evidence Recovery

Dr. REDACTED recovered four projectiles from the following locations: (1) right mid-back; (2) right lower back; (3) left lower back; and (4) right lower leg.172

A DNA blood card was obtained. HPD received other items of evidence at the morgue: two necklaces, two paper bags, a pair of handcuffs, a tag, swabs from Myeni’s hands, and nail clippings from both hands.173

5. Toxicology

A femoral blood sample was drawn during the autopsy. The ME sent the sample to NMS Labs. The toxicology screen reveals the presence of a marijuana component with metabolites.

Dr. REDACTED offers no opinion concerning the psychological or physiological

effect of marijuana on Myeni’s state of mind or his behavior.

F. Scientific/Forensic Evidence

1. Gunshot Residue Collection Kit

Gunshot residue (GSR) collection kits were used on the hands of Officer 1, Officer 2, Officer 3, and Myeni.174 HPD Criminalist REDACTED analyzed these kits. Her findings and conclusions are as follows:

Officer 1: Two particles characteristic of GSR

Officer 3: No GSR

Myeni: Six particles consistent with GSR Officer 2: Two particles consistent with GSR175

The presence of GSR on a person’s hands indicates one or more of the following:

- The person may have discharged a firearm.

- The person may have been in the vicinity of a firearm when it was discharged.

- The person may have come into contact with an item with GSR on it.176

3. Firearms and Tool Marks

HPD Criminalist REDACTED analyzed the firearms and ammunition evidence.

She concluded that the service firearms belonging to Officer 1, Officer 2, and Officer 3 were operable.

Regarding the four bullets recovered during the autopsy, one was fired from Officer 1’s service firearm and three were fired from Officer 2’s. The chart below summarizes each GSW,177 a brief description of the GSW, and the officer responsible for the shot.178

GSW NUMBER	ENTRY	HPD EVIDENCE NUMBER	RESPONSIBLE OFFICER
1	Right medial chest	42	Officer 1
2	Left lateral chest	44	Officer 2
3	Right medial shoulder	43	Officer 2
4	Right anterolateral distal thigh	45	Officer 2

4. DNA and Serology

HPD developed the known DNA profiles for Officer 1, Officer 3, and Myeni. HPD collected swabs as follows; (1) two swabs from Officer 1’s face; (2) two swabs from Officer 3’s face; (3) nail clippings from Myeni’s left and right hands; (4) two swabs from each of Myeni’s left and right hands.

HPD Criminalist REDACTED developed the DNA profiles from the aforementioned swabs and compared them against the known profiles for Officer 1, Officer 3, and Myeni.179 Her findings and conclusions regarding the two swabs from Officer 1’s face are as follows:

Human blood was indicated. The DNA profile was a mixture of two individuals. Assuming that Officer 1 is one of the contributors to the mixture, Myeni cannot be excluded as a possible contributor to the partial foreign DNA profile from the mixture. Using the most conservative frequency estimate calculated, approximately 208.3 million unrelated individuals would have to be evaluated before expecting to find an individual that would have a DNA profile that cannot be excluded as a possible contributor to the partial foreign DNA profile from this item of evidence.180

G. Search of Myeni’s Cell Phone

HPD Evidence Specialist REDACTED recovered Myeni’s iPhone 11 (the phone) from inside the residence and submitted it into evidence as Item 27 under HPD report no. 21-158469.

One June 4, 2021, the PAT obtained search warrant S.W. 2021-256 to search the phone. HPD executed the warrant and provided the results of the search on two flash drives. Investigator REDACTED reviewed the videos on each flash drive and found no images of 91 Coelho Way, Witness 1, Witness 2, REDACTED , REDACTED , REDACTED, or REDACTED .

GPS data from the phone confirms Myeni’s presence at Kewalo Basin and maps his route from the basin to 91 Coelho Way.

H. Other Factors

1. REDACTED and His Tenants Did Not Know Myeni

REDACTED, Witness 1, Witness 2, REDACTED, and REDACTED all denied knowing Myeni or having any prior interaction with him. 181 All affirmed that he did not have permission to enter the residence on April 14, 2021.

2. Canvas of the Neighborhood

Investigator REDACTED canvassed the neighborhood bordered by Wyllie and Burbank Streets, Coelho Way, and Pali Highway. He did not find any eyewitness to the officer-involved shooting.

The canvassing did not produce any relevant home surveillance footage.

Investigator REDACTED spoke with REDACTED, temple president, REDACTED who said that no resident at the temple saw or heard anything related to the shooting. REDACTED gave Investigator REDACTED an “Official Statement” dated April 23, 2021, prepared by their attorney. The statement reads in relevant part:

In publicity surrounding the tragic event and a lawsuit brought by Mr. Myeni’s widow, there have been some references to our temple being adjacent to the property where Mr. Myeni lost his life in a police shooting after police responded to a 911 call related to his arrival there. There has been some speculation that perhaps Mr. Myeni intended to go to our temple but mistakenly went to the neighboring property instead.

As management for the temple at 51 Coelho Way, we do not know Mr. Myeni and have no information concerning him or the events of April 14. We are not aware that he has ever been to our temple or had any intention to come to our temple on April 14. Had he come to our temple during hours we are open, we would have welcomed him as we do all members of the public interested in the spiritual practices or philosophy we offer our congregation and the public. It should be noted that at the time the event occurred after 8 pm, our temple was closed to the public and we would not have anticipated any visitors at that time. Our temple and congregation also has no affiliation, connection or knowledge concerning the neighboring property or its owner(s).

3. Information Known to the Responding Officers

There is no evidence that the responding officers spoke with Witness 1 or Witness 2 prior to their arrival at the scene. Accordingly, the information of which they were aware prior to arriving at 91 Coelho Way came from the dispatcher.

The relevant transmissions are as follows:

20:11:03

20:12:23

Upon his arrival the scene, Officer 1 interacted with Witness 1.182 She was upset, declared Myeni’s presence on the premises, and gestured towards Myeni’s direction. It is reasonable for Officer 1 to conclude that Witness 1, who still clutched her cell phone, was the caller referenced by dispatch.

20:13:30

The dispatcher addressed 972, 973, and 69 and stated that the call taker was crying and not answering questions. The male was blocking the door and she could not get inside.

4. Relative Size Difference

At the time of autopsy, Myeni measured 5’11” and weighed 203 pounds.183 Officer 1 is 5’8” and weighs 245 pounds.184

Officer 2 is 5’11” and weighs 190 pounds.185

Officer 3 is 5’11” and weighs 205 pounds.186

5. Law Enforcement’s Use of Non-Deadly Force

Uniformed police officers attempted to use two techniques to control Myeni before the discharge of their service firearms. First, Officer 1 made repeated verbal commands to obtain Myeni’s compliance. Myeni disregarded these commands and assaulted Officer 1.

Second, after witnessing Myeni assault Officer 1, Officer 3 deployed his Taser. It was ineffective. One Taser probe was attached to the Prius’ left rear bumper.187 The other probe struck Myeni’s shirt.188

6. Officer Injuries

Officer 1, Officer 2, and Officer 3 were injured. Their injuries are listed below.

a. Officer 1

On April 15, 2021, the emergency room physician diagnosed Officer 1 with multiple left face fractures, a left inner cheek cut, a left wrist sprain, and a serious concussion.189 The physician indicated serious bodily injury on Officer 1’s HPD 13.190

b. Officer 2

On April 15, 2021, the emergency room physician diagnosed Officer 2 with a right face abrasion.191

c. Officer 3

Officer 3 reported injuries to his left forehead area, pain to the right side of his neck, the left side of his inner bicep area, the left side of his outer forearm, and his left knee.192 There was a hole to the left knee of his uniform pants.193

On April 15, 2021, the emergency room physician diagnosed Officer 3 with a left knee strain and abrasion, a left arm bruise, a head hematoma, and a right neck strain.194

III. LEGAL PRINCIPLES

A. Definitions

“Believes” means reasonably believes.195

“Bodily injury” means physical pain, illness, or any impairment of physical condition.196

“Deadly force” means force which the actor uses with the intent of causing or which the actor knows to create a substantial risk of causing death or serious bodily harm. Intentionally firing a firearm in the direction of another person or in the direction which another 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 the actor will use deadly force if necessary, does not constitute deadly force.197

“Dwelling” means any building or structure, though movable or temporary, or a portion thereof, which is for the time being a home or place of lodging.198

“Force” means any bodily impact, restraint, or confinement, or the threat thereof.199

“Unlawful force” means force which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or would constitute an offense except for a defense not amounting to a justification to use the force. Assent constitutes consent, within the meaning of this section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious or substantial bodily injury.200

“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.201

“Substantial bodily injury” means a major avulsion, major laceration, or major penetration of the skin; a burn of at least second degree severity; a bone fracture; a serious concussion; or a tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs.202

B. Potential Defenses

Three HRS chapter 703 justification defenses apply to this case.203 Each is referenced below.

1. Use of Force in Self-Protection (HRS § 703-304; HAWJIC 7.01A)

HRS § 703-304 states in relevant part as follows:

(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 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.

(3) Except as otherwise provided in subsections (4) and (5) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.

…

(5) The use of deadly force is not justifiable under this section if:

(a) The actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:

(i) The actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

(ii) A public officer justified in using force in the performance of his duties, or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape, is not obliged to desist from efforts to perform his duty, effect the arrest, or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.

(6) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime.

The use of deadly force in self-defense involves consideration of two issue. First, did the actor use deadly force? Second, was the use of deadly force justified?204

The use of deadly force upon or toward another person is justified if the actor reasonably believes that deadly force is immediately necessary to protect himself on the present occasion against death or serious bodily injury.205 The reasonableness of the actor’s belief that the use of protective deadly force was immediately necessary shall be determined from the viewpoint of a reasonable person in the actor’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.206

2. Use of Force for the Protection of Other Persons (HRS § 703- 305; HAWJIC 7.02A)

HRS § 703-305 states in relevant part as follows:

(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.

Use of deadly force in the defense of others involves consideration of two issues. First, did the actor use deadly force? Second, was the use of deadly force justified?207

The use of force upon or toward the person of another is justifiable to protect a third person when, 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 the actor believes that the actor’s intervention is immediately necessary to protect the third person.208 The reasonableness of the actor’s belief that the use of deadly force was immediately necessary shall be determined from the viewpoint of a reasonable person in the actor’s position under the circumstances of which the actor was aware or as the actor reasonably believed them to be when the deadly force was used.209

3. Use of Force in Law Enforcement (HRS § 703-307)

HRS § 703-307 states in relevant part as follows:

(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 when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.

(2) The use of force is not justifiable under this section unless:

(a) The actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and

(b) When the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.

(3) The use of deadly force is not justifiable under this section unless:

(a) The arrest is for a felony;

(b) The person effecting the arrest is authorized to act as a law enforcement officer or is assisting a person whom he believes to be authorized to act as a law enforcement officer;

(d) The actor believes that:

(i) The crimes for which the arrest is made involved conduct including the use or threatened use of deadly force; or

(ii) There is a substantial risk that the person to be arrested will cause death or serious bodily injury if his apprehension is delayed.

IV. ANALYSIS

A. Myeni’s Entry into the Residence

The residence at 91 Coelho Way is used for lodging. As such, it qualifies as a “dwelling.” On April 14, 2021, Myeni entered the residence. Given the totality of the circumstances, it can be inferred that his entry was intentional.210 His entry was also unlawful, inasmuch as he did not have the permission of REDACTED or any of the tenants. This

conduct and the attendant circumstances implicate at least two offenses under the HPC: (1) burglary in the first degree in violation of HRS § 708-810 and (2) unauthorized entry in a dwelling in the second degree in violation of HRS § 708-812.6.211

The facts do not support the charge of burglary in the first degree. There is no evidence supporting the contention that, at the time of his unlawful entry, Myeni intended to commit a crime against person or property.212 Given that Myeni’s initial entry was unlawful, this analysis will not consider whether he remained unlawfully.213

At the time of his unlawful entry, Witness 1 and Witness 2 were present in the residence. Given the foregoing, Myeni committed the offense of unauthorized entry in a dwelling in the second degree in violation of HRS § 708-812.6.214

The affirmative defense codified in HRS § 708-812.6 is inapplicable here. At the time of his unlawful entry, there was no social gathering in progress in the residence.

As such, there was no gathering that Myeni could have intended to join.

B. Myeni Was Aware that Police Officers Had Responded to 91 Coelho Way

The argument has been made that Myeni used justifiable force against Officer 1 in self-defense. This argument rests on the contention that Myeni was unaware of Officer 1’s identity as a police officer and, as such, Myeni’s use of force against the police was an appropriate response to his perception that he was threatened. The following facts refute this argument.

First, earlier that evening Myeni had face-to-face interaction with uniformed police officers at Kewalo Basin. They communicated with each other in English. These officers were dressed in their class A uniforms. They also drove marked police cars.

This interaction occurred about 30 minutes before the fatal shooting. Accordingly, Myeni was familiar with HPD’s class A uniform before he went to 91 Coelho Way.

Second, Witness 1 informed Myeni that she intended to call 911. While there may have been a language barrier, both Witness 1 and Myeni spoke English.

According to Witness 1, Myeni said that he was not afraid of the police and that he would sleep outside. This statement conveys Myeni’s understanding of Witness 1’s intention to call the police. Witness 1 followed through and made the call. Taken together, it can be reasonably concluded that Myeni was aware that the police had been called. A reasonable person would have concluded that, based on the foregoing, the individuals who carried flashlights onto the property were police officers.

Third, Officer 1, Officer 2, and Officer 3 all wore class A uniforms. There is no BWC video that shows that the officers identified themselves as police prior to the discharge of the first gunshot. Regardless, in viewing all the relevant circumstances from an objective standard, a reasonable person would have known that Officer 1, Officer 2, and Officer 3 were, in fact, police officers.

Fourth, Myeni interacted with Officer 2 moments before his initial assault on Officer 1. While dressed in his class A uniform, Officer 2 asked Myeni a question. They were close enough to each other that Myeni heard and responded to the question. This close proximity supports the conclusion that Myeni saw how Officer 2 was dressed. It further supports the conclusion that Myeni knew that police had responded to Witness 1’s terrified 911 call.

C. Myeni Committed the Offense of Assault against a Law Enforcement Officer in the First Degree When He Assaulted Officer 1, Officer 2, and Officer 3

The offense of assault against a law enforcement officer in the first degree is codified in HRS § 707-712.5, which states:

(1) A person commits the offense of assault against a law enforcement officer in the first degree if the person:

(a) Intentionally or knowingly causes bodily injury to a law enforcement officer who is engaged in the performance of duty; or

(b) Recklessly or negligently causes, with a dangerous instrument, bodily injury to a law enforcement officer who is engaged in the performance of duty.

Officer 1, Officer 2, and Officer 3, all law enforcement officers, were engaged in the performance of their duty when then responded to 91 Coelho Way. Myeni caused bodily injury to all three officers.215 Based on the totality of the circumstances Myeni’s conduct was intentional or knowing. Furthermore, as stated above,216 Myeni was aware that Officer 1, Officer 2, and Officer 3 were police officers. Based on the foregoing, Myeni committed the offense of assault against a law enforcement officer in the first degree as to Officer 1, Officer 2, and Officer 3.

D. Myeni’s Toxicology Results Are Admissible in a Criminal Prosecution against either Officer 1 or Officer 2

As of this writing, the PAT is unaware of any expert opinion concerning what psychological or physiological effect, if any, the marijuana had on Myeni.217 Regardless, this investigation will assume that the toxicology results will be admissible in a criminal prosecution against either Officer 1 or Officer 2.218

As of this writing, there is no evidence that Officer 1, Officer 2, or Officer 3 were under the effect of any illicit or mind-altering substance at the time of the April 14, 2021 officer-involved shooting.

E. HRS Chapter 703 Defenses

1. Officer 1’s Use of Deadly Force in Self-Protection

The question is whether Officer 1 was legally justified in using deadly force in self-protection. This involves a two-part inquiry. First, did Officer 1 use deadly force? Second, was his use of deadly force justified?219

As to the first question, it is uncontroverted that Officer 1 used deadly force. His act of discharging his service firearm at Myeni was intentional. It was not an accident.

As to the second question, Officer 1’s use of deadly force was justified if he reasonably believed that deadly force was immediately necessary to protect himself from serious bodily injury. The reasonableness of Officer 1’s belief that the use of protective deadly force was immediately necessary is determined from the viewpoint of a reasonable person in Officer 1’s position under the circumstances of which Officer 1 was aware or as the Officer 1 reasonably believed them to be when the deadly force was used.

There is no evidence that Officer 1 spoke with Witness 1 or Witness 2 prior to his arrival at the scene. He had no personal knowledge of the contents of the Ring video or Witness 1’s 911 call. He had no prior contact with or knowledge of Myeni. Accordingly, the circumstances of which Officer 1 was aware prior to his arrival came from the dispatcher.

The relevant transmissions are as follows:

20:11:03

20:12:23

20:13:30

The dispatcher addressed 972, 973, and 69 and stated that the call taker was crying and not answering questions. The male was blocking the door and she could not get inside.

Upon his arrival the scene, Officer 1 interacted with Witness 1.220 She was unquestionably upset, declared Myeni’s presence on the premises, and gestured towards Myeni’s direction. It is reasonable for Officer 1 to conclude that Witness 1, who still clutched her cell phone, was the caller referenced by dispatch, and that Myeni was the burglary suspect.

Officer 1 was not the initial aggressor. He did not provoke Myeni’s use of force against him. As a law enforcement officer who responded to the scene as part of his official duties, he was under no duty to retreat.221

Under the circumstances that existed based on Officer 1’s subjective belief, it was objectively reasonable that he used deadly force to protect himself from death or serious bodily injury. A former rugby player, Myeni was physically superior to Officer 1: he was younger, taller, more muscular and athletic, and clearly stronger. Myeni physically assaulted Officer 1—i.e., he used unlawful force—before the police used any physical force against him. Officer 1 only discharged his service firearm after: (1) Myeni had assaulted him; (2) Officer 2 couldn’t control him; (3) Officer 3’s Taser shot proved ineffective; and (3) Myeni assaulted Officer 3. Testimonial,222 video,223 and forensic evidence224 confirm that Myeni assaulted Officer 1. Officer 1 in fact suffered serious bodily injury.225

2. Officer 2’s Use of Deadly Force for the Protection of Other Persons

As was the case with Officer 1, the information of which Officer 2 was aware concerning the situation prior to his arrival could only have come from the dispatcher. Furthermore, Officer 2 gathered additional information at the scene based on his interaction with Myeni and his observations of Myeni’s conduct. At the time Officer 2 used deadly force, he was not protecting himself against Myeni’s use of unlawful force against him. Rather, he was protecting Officer 1 from Myeni’s use of unlawful force.

Based on the foregoing, use of force for the protection of other persons applies here.

Defense of others when deadly force is at issue involves consideration of two issues: First, did the actor use “deadly force”? Second was the use of deadly force justifiable?226

As to the first question, it is uncontroverted that Officer 2 used deadly force. He intentionally fired his service firearm three times. Each shot struck Myeni.

As to the second question, the use of deadly force upon or toward another person is justifiable to protect a third person if, under the circumstances as the actor reasonably believed them to be, the third person would be justified in using deadly force to protect himself against death or serious bodily injury and the actor reasonably believes that his intervention is immediately necessary to protect the third person. The reasonableness of the actor’s belief that the use of deadly force was immediately necessary shall be determined from the viewpoint of the reasonable person in the actor’s position under circumstances of which the actor was aware or as the actor reasonably believed them to be when the deadly force was used. The actor’s belief that the use of deadly force was immediately necessary may be mistaken, but reasonable.

Officer 1, the third person, was under no duty to retreat. At the time of the incident, he was employed and on duty as a law enforcement officer. A 911 call prompted the police dispatch that sent him to 91 Coelho Way. He was not the initial aggressor nor did he provoke Myeni’s use of force against him.

Similarly, Officer 2 was under no duty to retreat.227 Any retreat on his part would not, under the circumstances, have secured Officer 1’s safety.

The facts support the conclusion that Officer 2’s use of deadly force was justifiable to protect Officer 1. Under the circumstances that Officer 2 believed existed at the time, Officer 1, who was repeatedly struck to the face and head, would have been justified in using deadly force to protect himself from death or serious bodily injury. As explained above, Officer 1 suffered serious bodily injury. Under the circumstances, there was no duty for Officer 1 to retreat and he was not the first aggressor.

Officer 2 described his thought process as follows:

This investigation finds that Officer 2’s belief that his use of deadly was immediately necessary was objectively reasonable. Three police officers could not control Myeni. Myeni had assaulted Officer 1, assaulted Officer 2, was unaffected by the Taser, assaulted Officer 3, and returned to assault Officer 1. Myeni’s second assault of Officer 1 occurred after Officer 1’s bullet struck him in the mid-chest. Officer 2 saw Myeni positioned over Officer 1 as he repeatedly struck the fallen officer in the face and head.

3. Use of Force in Law Enforcement

The initial officers did not have an arrest warrant nor did they have probable cause to effectuate a warrantless arrest when they arrived at the scene. The initial officers responded to a burglary dispatch at the residence. Officer 1 entered the east driveway entrance, at which time he saw and heard Witness 1, who stood outside the residence’s front entrance. She was clearly upset and excitedly yelled, “That’s him,” as she gestured in Myeni’s direction. Based on the foregoing, Officer 1 appropriately investigated the matter further and, once confronted by Myeni, had a basis to perform an investigative detention.228

The circumstances changed after Myeni assaulted Officer 1, Officer 2, and Officer 3.229 This conduct established probable cause for Myeni’s warrantless arrest for assault against a law enforcement officer in the first degree.230

The question is whether Officer 1 and Officer 2’s intentional discharge of their service firearms is a justified use of force in law enforcement. HRS § 703-307 states in relevant part as follows:

…

(3) The use of deadly force is not justifiable under this section unless:

(a) The arrest is for a felony;

(b) The person effecting the arrest is authorized to act as a law enforcement officer or is assisting a person whom he believes to be authorized to act as a law enforcement officer;

(d) The actor believes that:

(i) The crimes for which the arrest is made involved conduct including the use or threatened use of deadly force; or

(ii) There is a substantial risk that the person to be arrested will cause death or serious bodily injury if his apprehension is delayed.

“Section 703-307(3) sets forth the very limited circumstances in which deadly force may be used to effect an arrest.”231 The analysis of HRS § 703-307(3) follows below.

First, the officers were authorized to arrest Myeni without a warrant for assault against a law enforcement officer in the first degree, a class C felony. HRS § 703- 307(3)(a).

Second, Officer 1, Officer 2, and Officer 3 were on duty as sworn HPD police officers. As such, they are law enforcement officers who are authorized to make arrests for violations of the HPC. HRS § 703-307(3)(b).

Third, Officer 1 and Officer 2’s use of deadly force created no substantial risk of injury to innocent persons. HRS § 703-307(3)(c). There were no non-police persons, other than Myeni, outside the residence, in the immediate area, when Officer 1 and Officer 2 discharged their service firearms. Both officers, therefore, had a reasonable belief that their use of deadly force did not create a substantial risk of injury to innocent persons.

Fourth, under the facts of this case, there was a substantial risk that Myeni would have caused serious bodily injury if his apprehension was delayed. HRS § 703- 307(3)(d)(ii). Officer 2 articulated this objectively reasonable belief in his police report. He wrote:

Officer 1’s diagnosed injuries, i.e., serious bodily injury, confirm Officer 2’s assessment of the situation before he discharged his service firearm.

Based on the foregoing, Officer 1 and Officer 2’s use of deadly force was justified under HRS § 703-307.

V. CONCLUSION

To secure a conviction for an offense under the HPC, the prosecution must disprove an applicable defense—other than an affirmative defense—beyond a reasonable doubt.232 The defenses codified in HRS §§ 703-304, -305, and -307 are not affirmative defenses. As such, where these defenses are applicable they must be disproved (or negated) beyond a reasonable doubt.233

The PAT declines to prosecute either Officer 1 or Officer 2 for any offense under the HPC for their intentional use of deadly force on April 14, 2021.

The prosecution is unable to disprove beyond a reasonable doubt that (1) Officer 1’s use of deadly force was not justified for self-protection; (2) Officer 2’s use of deadly force was not justified for protection of others; and (3) the officers’ use of deadly force was not a justified use of force in law enforcement.

In other words, the PAT concludes that Officer 1 and Officer 2 were justified in their use of deadly force for self-protection and protection of others, respectively.

VI. MATERIALS CONSIDERED

A. HPD Report No. 21-158469

1. Honolulu Police Department Reports

Patrol

REDACTED

- Officer 3

REDACTED

- Officer 2

REDACTED

Detectives

REDACTED

Scientific Investigation Section

REDACTED

2. Written Witness Statements

- Witness 1

- Witness 2

3. HPD Recorded Statements234

- Witness 2

- Witness 1

4. Sixteen (16) HPD Body-Worn Camera Videos

REDACTED

- Officer 3

REDACTED

- Officer 1

REDACTED

- Officer 2

REDACTED

5. Twenty-eight (28) Ring Videos

- Provided by REDACTED

- HPD 503

6. Radio Transmissions

- Witness 1’s 911 call235

- Police radio transmissions236

B. HPD Report No. 21-158432

i. Patrol Reports

- Officer C

- HPD 252 of

ii. Three (3) Body-Worn Camera Videos

- Officer C

- Officer B

- Officer A

C. Miscellaneous Public Reports

1. HPD Report No. 21-162831 (Officer D)

2. HPD Report No. 21-161113 ( )

D. Other Materials Received from HPD

1. District 5 Duty Roster for April 14, 2021

2. Personnel information for Officer 1, Officer 2, and Officer 3

3. Vehicle information for Officer 1, Officer 2, and Officer 3

4. Use of Force information for Officer 1, Officer 2, and Officer 3

E. Department of the Medical Examiner

1. ME Investigation of Death (ME Case No. 21-0963)

2. ME Autopsy Report (ME Case No. 21-0963)

3. Toxicology Report (ME Case No. 21-0963)

4. Chain of custody documents (ME Case No. 21-0963)

F. PAT Independent Investigation

1. Neighborhood canvassing

2. “Official Statement” from ISKCON Hawaii, Inc. dated April 23, 2021

3. Other Witnesses

a. REDACTED told investigator REDACTED: Owners of REDACTED told investigators that for the last 18 months they have gone to their residence to collect their mail.

b. REDACTED : The person to whom the police released the Mazda.237 He confirmed to have picked up the vehicle as a favor for REDACTED but claimed that he was not the owner. He declined to provide any additional information without his attorney.

c. REDACTED : Identified by REDACTED as Myeni’s good friend. The Office of the Public Defender represents REDACTED in Case No. REDACTED , where he awaits trial for abuse of family or household members that occurred on April 19, 2021. REDACTED is the complainant. Investigator REDACTED was unable to interview REDACTED.

d. REDACTED: Resident at REDACTED who observed Myeni’s conduct while they were neighbors.

4. Search of the Myeni’s iPhone

a. SW 2021- 256 (obtained on 6/4/21 and executed by HPD)

b. Contents of two flash drives provided by HPD

5. Video

a. Twitter Video (2:13)

Footnotes:

1 https://www.google.com/maps/place/91+Coelho+Way,+Honolulu,+HI+96817/@21.3306599,-157.8488745,17z/data=!3m1!4b1!4m5!3m4!1s0x7c006c2da1741795:0xe9131d5849c7e374!8m2!3d21.3306549!4d-157.8466858 . The start time for this period is based on the time stamp on Ring video (55560042_6951262220498915227_stamp.mp4). The three- round volley signifies the end event. Ring video (55560042_6951264144644263835_stamp (1).mp4). The time stamp is 8:15:24 HST.

2 https://qpublic.schneidercorp.com/Application.aspx?AppID=1045&LayerID=2334 2&PageTypeID=4&PageID=9746&Q=184222392&KeyValue=180060780000

3 Witness 1 and Witness 2 interviews.

4 https://www.google.com/maps/place/51+Coelho+Way,+Honolulu,+HI+96817/@21.3301569,-157.8490608,17z/data=!3m1!4b1!4m5!3m4!1s0x7c006c2d09640a8b:0x617a09be557d8 f9a!8m2!3d21.3301519!4d-157.8468721

5 https://sunrise-sunset.org/us/honolulu-hi/2021/4

6 Witness 1 interview; BWC video.

7 Medical Examiner (ME) Investigation of Death at 1.

8 Statement of REDACTED to Investigator REDACTED .

9 This information, provided by HPD’s Professional Standards Office (PSO), is as of April 14, 2021.

10 The earliest documented UOF entry in the provided records for Officer 1 is June 12, 2017.

11 The earliest documented UOF entry in the provided records for Officer 2 is April 12, 2019.

12 The earliest documented UOF entry in the provided records for Officer 3 is January 1, 2017.

13 “‘Law enforcement officer’ means any public servant, whether employed by the State or county or by the United States, vested by law with a duty to maintain public order or, to make arrests for offenses or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses.”

14 Statement of

15 Officer C’s report.

16 Officer C’s report.

17 Officer C’s report.

18 Officer C’s report.

19 Officer C’s report.

20 Officer C’s report.

21 Officer C’s report.

22 Officer B BWC.

23 Officer B BWC.

24 Officer B BWC.

25 Officer B BWC.

26 Officer B BWC.

27 Officer B BWC.

28 Officer B BWC.

29 Officer B BWC.

30 Officer B BWC.

31 Officer B BWC.

32 Officer B BWC.

33 Officer B BWC.

34 Officer B BWC.

35 Officer C BWC.

36 Officer C BWC.

37 Officer C BWC.

38 Officer C BWC.

39 This occurred at 7:53:31 p.m. Officer C’s BWC.

40 Officer C BWC.

41 Officer C BWC.

42 Officer C BWC.

43 See Section II.G., infra

44 District 5 3rd Watch Duty Roster for April 14, 2021.

45 District 5 3rd Watch Duty Roster for April 14, 2021.

46 See attached District 5 patrol map and District 5 3rd Watch Duty Roster for April 14, 2021.

47 BWC video.

48 REDACTED , REDACTED , and REDACTED BWC video.

49 Officer 1 did not prepare a report. Accordingly, there is no averment in his own hand that he had a blue light bar on his subsidized vehicle on April 14, 2021. Regardless, for purposes of this investigation, the PAT will assume that he did have a blue light bar.

50 Officer 2 report. See attached District 5 patrol map and District 5 3rd Watch Duty Roster for April 14, 2021.

51 Officer 2 report.

52 Officer 2 report. See photographs taken by Evidence Specialist

53 Officer 3 report. See attached District 5 patrol map and District 5 3rd Watch Duty Roster for April 14, 2021.

54 Officer 3 report. See also HPD report no. 21-161113.

55 Photographs taken by Evidence Specialist REDACTED ; BWC video.

56 Photographs taken by Evidence Specialist REDACTED .

57 Witness 1 interview.

58 Witness 1 interview; Ring video (55560042_6951262220498915227_stamp.mp4). The route described by Witness 1 is the same that Myeni took. See Section II.D.2., supra.

59 Witness 1 interview and HPD 252.

60 Witness 1 interview and HPD 252.

61 Ring video (55560042_6951262220498915227_stamp.mp4). The Ring video time stamp is 20:07:50 HST.

62 Ring video (55560042_6951262220498915227_stamp.mp4). The Ring video time stamp is 807:56 HST.

63 Scene photographs; REDACTED interview (asserting that he did not recognize the car with the Texas plates).

64 As stated previously, Myeni took the same route as Witness 1 and Witness 2 to 91 Coelho Way. It is unknown at what precise point Myeni began following them.

65 Witness 1 and Witness 2 interviews; Ring video (55560042_6951262220498915227_stamp.mp4). The Ring video time stamp is 20:08:35 HST.

66 Ring video (55560042_6951262220498915227_stamp.mp4). The Ring video time stamp is 20:08:39 HST.

67 Witness 1 interview; Officer 1 and Officer 3 BWC video; Ring video (55560042_6951262220498915227_stamp.mp4); photographs of recovered clothing. 68 REDACTED Ring videos (55560042_6951262220498915227_stamp.mp4) (55560042_6951262486786887579_stamp.mp4).

69 Witness 1 HPD 252.

70 Ring video (55560042_6951262486786887579_stamp.mp4). The Ring video time stamp is 20:08:48 HST.

71 Witness 1 interview.

72 Witness 1 HPD 252.

73 Witness 1 interview and HPD 252. See also Witness 2 HPD 252 (“I heard him talking to my wife about ‘film or video’ and my wife was panic because we don’t know him and I heard my wife said ‘I don’t know who you are and I’ll call 911.’”)

74 Witness 1 interview and HPD 252.

75 Witness 1 interview.

76 Witness 1 interview; Witness 2 HPD 252.

77 Witness 1 interview.

78 Witness 1 interview and HPD 252; Witness 2 HPD 252.

79 Witness 1 interview and HPD 252.

80 Witness 2 and interviews; Witness 2 HPD 252.

81 REDACTED interview.

82 Witness 1 HPD 252.

83 Witness 1 interview and HPD 252.

84 Witness 1 interview and HPD 252.

85 Witness 1 interview.

86 Witness 1 interview.

87 Witness 1 interview.

88 Witness 1 interview.

89 Witness 2 HPD 252.

90 As of this writing the PAT does not have a transcript of this call.

91 Ring video (55560042_6951263564823678875_stamp.mp4). The Ring video time stamp is 20:12:56 HST.

92 Ring video (55560042_6951263564823678875_stamp.mp4). The Ring video time stamp is 20:12:59 HST.

93 Ring video (55560042_6951263564823678875_stamp.mp4). The Ring video time stamp is 20:13:07 HST.

94 Ring video (55560042_6951263564823678875_stamp.mp4). The Ring video time stamp is 20:13:28-42 HST.

95 Ring video (55560042_6951263564823678875_stamp.mp4). The Ring video time stamp is 20:13:40 HST.

96 Ring video (55560042_6951263564823678875_stamp.mp4). The Ring video time stamp is 20:13:52 HST.

97 Ring video (55560042_6951263564823678875_stamp.mp4). The Ring video time stamp is 20:13:52 HST.

98 Witness 1 interview.

99 Ring video (55560042_6951263564823678875_stamp.mp4). The Ring video time stamp is 20:13:55 HST.

100 Ring video (55560042_6951263564823678875_stamp.mp4). The Ring video time stamp is 20:14:05 HST.

101 Ring video (55560042_6951263564823678875_stamp.mp4). Again, this investigation assumes that Officer 1’s subsidized vehicle was equipped with a blue light bar.

102 Officer 1 BWC video.

103 Officer 1 BWC video; Ring video (55560042_6951263835406618523_stamp.mp4).

104 Ring video (55560042_6951263835406618523_stamp.mp4).

105 Ring video (55560042_6951263835406618523_stamp.mp4).

106 Ring video (55560042_6951263835406618523_stamp.mp4).

107 Officer 2 report.

108 Officer 2 report.

109 Officer 2 report.

110 Officer 2 report.

111 Officer 2 report.

112 Witness 1 interview.

113 Witness 1 interview.

114 Officer 2 report.

115 Officer 2 report.

116 Officer 2 report. See also Officer 2 BWC video.

117 Officer 3 report.

118 Officer 3 report. This is also corroborated by Witness 1’s 911 call and the dispatcher’s transmission.

119 Officer 3 BWC video.

120 Officer 3 BWC video.

121 Officer 1 BWC video.

122 Officer 1 BWC video.

123 Officer 1 BWC video.

124 Officer 1 BWC video; Ring video (55560042_6951263835406618523_stamp.mp4). The Ring video time stamp is 20:14:31 HST.

125 Officer 1 BWC video; Ring video (55560042_6951263835406618523_stamp.mp4). The Ring video time stamp is 20:14:34 HST.

126 Officer 1 BWC video; Ring video (55560042_6951263835406618523_stamp.mp4). The ring video time stamp is 20:14:38 HST.

127 Officer 1 BWC video; Ring video (55560042_6951263835406618523_stamp.mp4). The Ring video time stamp is 20:14:40 HST.

128 Officer 1 BWC video; Ring video (55560042_6951263835406618523_stamp.mp4).

129 Officer 1 BWC video; Ring video (55560042_6951263835406618523_stamp.mp4). The Ring video time stamp is 20:14:44 HST.

130 Officer 1 BWC video; Ring video (55560042_6951263835406618523_stamp.mp4). The Ring video time stamp is 20:14:48 HST.

131 Ring video (55560042_6951263835406618523_stamp.mp4). The Ring video time stamp is 20:14:51 HST.

132 Officer 1 BWC video.

133 Officer 1 BWC video.

134 Compare Myeni’s appearance as recorded in Officer 1’s BWC video with dispatch’s suspect description.

135 Officer 1 BWC video.

136 Officer 1 BWC video.

137 Officer 2 report; Officer 1 BWC video.

138 Officer 3 and Officer 2 report; Witness 1 interview (she described Myeni as changing his direction and run towards the officer (Officer 1).

139 Officer 3 report and BWC video; Officer 2 report.

140 Officer 3 BWC video.

141 Officer 3 report and BWC video; Officer 2 report. See also Ring video (55560042_6951264144644263835_stamp (1).mp4). The Ring video time stamp is 20:15:10 HST.

142 Officer 3 report and BWC video; Officer 2 report; Ring video (55560042_6951264144644263835_stamp (1).mp4). Later, one of the Taser probes was found affixed to the Prius’ left rear bumper.

143 Officer 3 report and BWC video.

144 Officer 3 report and BWC video.

145 Officer 2 report.

146 Officer 3 report.

147 Officer 3 report.

148 Officer 1 BWC video.

149 Officer 2 report; Officer 1 BWC video; Ring video (55560042_6951264144644263835_stamp (1).mp4). The Ring video time stamp is 20:15:18 HST.

150 Officer 2 report; Officer 3 BWC video.

151 Officer 2 report; Officer 1 BWC video.

152 Officer 2 report; Ring video (55560042_6951264144644263835_stamp (1).mp4).

153 Officer 1 BWC video; Officer 3 BWC video; Ring video (55560042_6951264144644263835_stamp (1).mp4). The Ring video time stamp is 20:15:23 HST.

154 Ring video (55560042_6951264144644263835_stamp (1).mp4). The Ring video time stamp is 20:15:27 HST.

155 Officer 1 BWC video.

156 REDACTED , REDACTED , REDACTED , and REDACTED BWC video.

157 EMS record.

158 Officer 2 report.

159 Officer 2 report.

160 Officer 2 report and BWC video.

161 Officer 1 BWC video.

162 Officer 2 report.

163 Officer 2 report.

164 EMS record.

165 ME Investigation of Death at 1-2.

166 Officer 2 report.

167 The ME’s numbering system does not imply order of infliction. See attached ME Diagram under ME Case No. 21-0963.

168 Item 42 submitted under HPD report no. 21-158469.

169 Item 44 submitted under HPD report no. 21-158469.

170 Item 43 submitted under HPD report no. 21-158469.

171 Item 45 submitted under HPD report no. 21-158469.

172 ME Autopsy Report and Chain of Custody document.

173 ME Chain of Custody document.

174 REDACTED report.

175 REDACTED report.

176 REDACTED report.

177 The ME’s numbering system does not imply order of infliction. However, given

the totality of the circumstances, GSW #1 was the first shot fired.

178 REDACTED report, ME Autopsy Report and Diagram.

179 REDACTED report.

180 REDACTED report.

181 REDACTED , Witness 1, Witness 2, , and REDACTED interviews. See also REDACTED ’s statement

to Investigator .

182 Officer 1 BWC video; Ring video.

183 See ME identification tag attached to sealed body bag.

184 Personnel information provided by PSO.

185 Personnel information provided by PSO.

186 Personnel information provided by PSO.

187 ME Investigation of Death Report at 3. See Item 33 submitted under HPD report no. 21-158469.

188 ME Investigation of Death Report at 3. See Item 32 submitted under HPD report no. 21-158469.

189 HPD 13 for Officer 1.

190 HPD 13 for Officer 1.

191 HPD 13 for Officer 2.

192 Officer 3 report.

193 See photographs taken by Evidence Specialist .

194 HPD 13 for Officer 3.

195 HRS § 703-300.

196 HRS § 707-700.

197 HRS § 707-300.

198 HRS § 707-300.

199 HRS § 707-300.

200 HRS § 707-300.

201 HRS § 707-700.

202 HRS § 707-700.

203 HRS § 703-301(1) (“In any prosecution for an offense, justification, as defined in sections 703-302 through 703-309, is a defense.”).

205 HAWJIC 7.01A

206 HAWJIC 7.01A

207 HAWJIC 7.02A.

208 HAWJIC 7.02A.

210 State v. Eastman, 81 Hawaiʻi 131, 141, 913 P.2d 57, 67 (“Given the difficulty of proving the requisite state of mind by direct evidence in criminal cases, proof by circumstantial evidence and reasonable inferences arising from circumstances surrounding the defendant’s conduct is sufficient.”).

211 Criminal trespass in the first degree in violation of HRS § 708-813 is an included offense that will not be discussed in this analysis.

212 State v. Mahoe, 89 Hawaiʻi 284, 288, 972 P.2d 287, 291 (1998) (holding that, in order to sustain a burglary conviction, the intent to commit the offense must have existed at the time the unlawful entry was made).

213 Id. at 290, 972 P.2d at 293 (holding that a perpetrator “remains unlawfully” for the purposes of a burglary prosecution only in situations in which the individual makes a lawful entry that subsequently becomes unlawful).

214 HRS § 708-812.6 states:

(1) A person commits the offense of unauthorized entry in a dwelling in the second degree if the person intentionally or knowingly enters unlawfully into a dwelling and another person was lawfully present in the dwelling.

(2) Unauthorized entry in a dwelling in the second degree is a class C felony.

(3) It shall be an affirmative defense that reduces this offense to a misdemeanor that, at the time of the unlawful entry:

(a) There was a social gathering of invited guests at the dwelling the defendant entered;

(b) The defendant intended to join the social gathering; and

215 As to Officer 1, Myeni caused serious bodily injury.

216 See Section IV.B., supra.

217 To reiterate, Dr. REDACTED expresses no opinion on this matter.

218 State v. DeLeon, 131 Hawaiʻi 463, 319 P.3d 382 (2014) (holding that the trial court erred in excluding defense expert’s opinion that victim’s ingestion of cocaine had an impact on his behavior because the exclusion violated defendant’s due process rights to a complete defense).

219 HAWJIC 7.01A.

220 Officer 1 BWC video; Ring video.

221 HAWJIC 7.01A, as modified, states in relevant part:

“When the defendant is a public officer justified in using force in the performance of his duties, the defendant is not obliged to desist from efforts to perform the duty or effect the arrest or prevent the escape, because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.”

Compare HRS § 703-304(5)(b)(ii).

222 Witnes 1 and Witness 2 statements; Officer 3 and Officer 2 reports.

223 Officer 3 BWC video.

224 REDACTED report.

225 HPD 13 for Officer 1.

226 HAWJIC 7.02A.

227 HAWJIC 7.02A, as modified, states in relevant part:

“If the defendant is a public officer justified in using force in the performance of his duties he is not obliged to desist from efforts to perform his duty or effect the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.”

228 State v. Barnes, 58 Haw. 333, 337-38, 568 P.2d 1207, 1211 (1977) (articulating the standard for an investigative stop).

229 See Section IV.C., supra.

230 Barnes, 58 Haw. at 335, 568 P.2d at 1209-10 (“The arrest in this case was effected by the police without a warrant, and an arrest without a warrant will be upheld only where there was probable cause for the arrest. Probable cause exists when the facts and circumstances known to the officer, or of which he had reasonably trustworthy information, would warrant a man of reasonable caution to believe that the person arrested has committed or is committing an offense.”).

231 Commentary to HRS § 703-307.

232 HRS §§ 701-114, 701-115, and 702-205.

HRS § 701-114 states:

(1) Except as otherwise provided in section 701-115, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:

(a) Each element of the offense;

(b) The state of mind required to establish each element of the offense;

(d) Facts establishing venue; and

(e) Facts establishing that the offense was committed within the time period specified in section 701-108.

(2) In the absence of the proof required by subsection (1), the innocence of the defendant is presumed.

HRS § 701-114 states:

(1) Except as otherwise provided in section 701-115, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:

(a) Each element of the offense;

(b) The state of mind required to establish each element of the offense;

(d) Facts establishing venue; and

(e) Facts establishing that the offense was committed within the time period specified in section 701-108.

(2) In the absence of the proof required by subsection (1), the innocence of the defendant is presumed.

HRS § 702-205 states:

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).

233 See, e.g., State v. Culkin, 97 Hawaiʻi 206, 215, 35 P.3d 233, 242 (2001) (“Self- defense is not an affirmative defense, and the prosecution has the burden of disproving it once evidence of justification has been adduced.”).

234 As of this writing, the PAT does not have transcripts of these interviews.

235 As of this writing, the PAT does not a have a transcript of this call.

236 As of this writing, the PAT does not a have a transcript of this call.

237 HPD-83 “HONOLULU POLICE DEPARTMENT PROPERTY RECEIPT.”

Original PDF of report:

Officer-Involved Shooting R... by Honolulu Star-Advertiser

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