State v. Lavoie.
Citation145 Haw. 409, 453 P.3d 229
Date Filed2019-11-22
DocketSCWC-15-0000643
Cited21 times
StatusPublished
Full Opinion (html_with_citations)
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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
22-NOV-2019
09:11 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIĘťI
---o0o---
STATE OF HAWAIďŁI,
Respondent/Plaintiff-Appellee,
vs.
MARLIN L. LAVOIE,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 13-1-0236(3))
NOVEMBER 22, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
The circuit court in its pretrial order in this case
excluded evidence of âother bad actsâ committed by the
defendant. At trial, however, the court ruled that the
defendant, by questioning a Stateâs witness about a single
instance of separation between the defendant and the decedent,
opened the door to the defendantâs prior acts of abuse. Over
objection, the court admitted into evidence five instances of
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prior abuse that were not shown to be followed by a period of
separation between the defendant and the decedent. The prior
misconduct in this case was admitted to rebut the affirmative
defenses of lack of penal responsibility and extreme mental and
emotional distress. In an unsuccessful appeal to the
Intermediate Court of Appeals, the defendant argued that the
circuit court erred in admitting the prior incidents of abuse,
failed to properly limit consideration of the prior misconduct
evidence, and omitted a requisite jury instruction on merger.
On certiorari, we review the âopening the doorâ
doctrine and determine whether the circuit court correctly ruled
that the door was opened in this case. We also address, in the
context of a limiting instruction, the crucial difference
between a defendantâs state of mind to commit an offense and a
defendantâs mental condition as it applies to the affirmative
defenses of lack of penal responsibility and extreme mental and
emotional distress. Finally, we consider whether the crimes of
felon in possession and place to keep are continuous crimes,
necessitating a merger instruction in this case.
Based upon our review, we conclude that the five prior
acts of abuse were erroneously admitted. We also hold that the
circuit court erred by not submitting a merger instruction to
the jury because the crimes of felon in possession and place to
keep are continuous crimes and the determination of merger must
2
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be made by the trier of fact. Accordingly, we vacate the
convictions in this case and remand for further proceedings
consistent with this opinion.
I. BACKGROUND AND CIRCUIT COURT PROCEEDINGS
On March 20, 2013, Malia Kahalewai was fatally shot at
the Kawela Barns Apartments on the island of MolokaďŁi. Kahalewai
was the longtime girlfriend of Marlin L. Lavoie, with whom she
lived in Honouliwai Valley, and the couple had four children
together.
Lavoie was charged by complaint in the District Court
of the Second Circuit with the following offenses: murder in the
second degree in violation of HawaiďŁi Revised Statutes (HRS)
§ 707-701.5;1 carrying or use of a firearm in the commission of a
separate felony in violation of HRS § 134-21(a);2 ownership or
possession prohibited of any firearm in violation of HRS § 134-
7(b);3 and place to keep loaded firearms other than pistols and
1
HRS § 707-701.5 (1993) provides in pertinent part: âExcept as
provided in section 707-701, a person commits the offense of murder in the
second degree if the person intentionally or knowingly causes the death of
another person.â
2
HRS § 134-21(a) (2011) provides in pertinent part:
It shall be unlawful for a person to knowingly carry on the
person or have within the personâs immediate control or
intentionally use or threaten to use a firearm while engaged in
the commission of a separate felony, whether the firearm was
loaded or not, and whether operable or not.
3
HRS § 134-7(b) (2011) provides in full:
(continued . . .)
3
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revolvers in violation of HRS § 134-23(a).4 An amended complaint
was subsequently filed in the Circuit Court of the Second
Circuit (circuit court).5
A. Motion to Determine Fitness to Proceed and Penal
Responsibility
Lavoie moved for an examination of his fitness to
proceed and penal responsibility pursuant to HRS § 704-404 (1993
& Supp. 2008). A three-doctor panel examined Lavoie, and the
examiners filed their reports with the court on October 17,
2013. At a hearing, Lavoie stipulated that he was fit to
proceed.6
(. . . continued)
No person who is under indictment for, or has waived indictment
for, or has been bound over to the circuit court for, or has been
convicted in this State or elsewhere of having committed a
felony, or any crime of violence, or an illegal sale of any drug
shall own, possess, or control any firearm or ammunition
therefor.
4
HRS § 134-23(a) (2011) provides in pertinent part:
Except as provided in section 134-5, all firearms shall be
confined to the possessorâs place of business, residence, or
sojourn; provided that it shall be lawful to carry unloaded
firearms in an enclosed container from the place of purchase to
the purchaserâs place of business, residence, or sojourn, or
between these places upon change of place of business, residence,
or sojourn . . . .
5
The amended complaint removed a charge of terroristic threatening
in the first degree in violation of HRS § 707-716(e) (Supp. 2011) that was
included in the initial complaint and added a misdemeanor count of abuse of
family or household member in violation of HRS § 709-906 (1993 & Supp. 2012)
and a misdemeanor count of assault in the third degree in violation of HRS §
709-712(1)(a) (1993). Both of the added offenses were later dismissed
without prejudice.
6
The motion and trial proceedings were presided over by the
Honorable Joseph Cardoza.
4
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On May 15, 2015, a hearing was held on motions in
limine, at which time the court granted the defenseâs motion to
preclude the use of any prior bad acts at trial. The motion in
limine was granted without objection by the State although the
prosecutor stated that, âshould the door be openedâ through
cross-examination by the defense or in the defenseâs case-in-
chief, it would ask for the courtâs reconsideration. The
courtâs written order excluded testimonial and documentary
evidence relating to Lavoieâs prior criminal history and âbad
actsâ committed by Lavoie that included allegations of any
crimes of violence.
B. Trial
The State called Nicole Aea, a friend of Kahalewai,
who testified that she was with Kahalewai in the hours leading
up to the shooting at their mutual friend Barbara Haliniakâs
apartment. Aea testified that Kahalewai had been alternating
between staying with Haliniak and Haliniakâs neighbor, Victoria
Toledo. Aea stated that, when Lavoie arrived at Haliniakâs
apartment on the evening of the shooting, she was with Kahalewai
and her two friends Maile Manintin and Leilani Mollena in
Haliniakâs bedroom. Manintin later testified that, when they
were told that Lavoie was in the house, they shut off the lights
in the bedroom and closed the door. She said that Lavoie came
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into the room by pushing the door open while one of her friends
was still holding on to the doorknob.
Lavoie asked Kahalewai to talk to him alone and to
come home, Aea said, but Kahalewai repeatedly told him no. Aea
stated that Lavoie told Kahalewai that their children missed her
and continued to ask her to talk to him, to which Kahalewai kept
responding, âno, go away.â After five to ten minutes of Lavoie
begging Kahalewai to come with him, his eyes started to tear-up
and he became âclearly upset and sad,â Aea testified.
Eventually, Aea stated, she and Kahalewai left the
bedroom and went out to the porch. Aea indicated that they were
joined by Manintin and Mollena. Aea testified that while the
four were socializing, Lavoie was at the bottom of the porch
still teary-eyed and continuing to ask Kahalewai to come home.
Lavoie recounted in an interview with Detective (Det.) Jeffrey
Mahoney, recorded the morning after the shooting, that when they
were on the porch Kahalewai would reply only by calling him
names and saying things such as âI no love you, I no like be
with you,â âgo be with a guy,â and âfuck you faggot, fuck, I no
love you faggot, you ugly.â Manintin testified that she heard
Lavoie say to Kahalewai âwhy no like me, you no love me, we have
a family . . . we got family together, just come home.â Aea
said that the conversation ended when Kahalewai told Lavoie âyou
should find a guy because this bitch not going to take care of
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you anymore.â Lavoie told Det. Mahoney that this made him
âfreak[] outâ and â[he] just snapped.â
Lavoie stated in the interview that he asked
Kahalewai, â[T]hatâs what you think I am?â and then went to his
car and retrieved his rifle. Aea testified that when Lavoie
came back to the porch, he said, â[Y]ou gonna leave me,â and
shot her once in the chest from close range. Kahalewai was
transported to the MolokaďŁi General Hospital where she was
pronounced dead shortly thereafter.7
During the police interview, Lavoie said that after
the shooting, he immediately âfreaked outâ and ran away. He
stated that he returned to his vehicle with his rifle, drove to
his home, and hid the rifle in bushes on his neighborâs
property. Lavoie told Det. Mahoney that his father, who was at
home when he returned, advised him to turn himself into the
police.8
During his interrogation, Lavoie admitted to Det.
Mahoney that he shot Kahalewai. Lavoie told Det. Mahoney that
he had bipolar disorder, and on the night of the shooting he
snapped because Kahalewaiâs comments made him âdepressed, but
not pissed off.â He said that he did not plan to go to
7
An autopsy determined that the cause of death was a single
gunshot wound to the chest.
8
Det. Greg Katayama testified that Lavoie turned himself in the
morning after the shooting.
7
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Haliniakâs house to kill her, but â[d]arkness took over [him]â
and he âjust lost [his] mind.â9
During defense counselâs cross-examination of Aea,
counsel requested a bench conference to notify the court that
his questioning of Aea might elicit information on what âcould
be conceivably construed as a prior bad actâ addressed in
Lavoieâs motion in limine. Defense counsel stated that he
intended to question Aea about â[Kahalewai] leaving [Lavoie] in
the aftermath of arguments for some period of time.â The
prosecutor did not object but stated that such questions would
open the door to why she would leave and what the arguments were
about. Defense counsel responded by saying, âThat may be the
case.â
Defense counsel asked Aea the following:
Q. We were talking about the arguments that [Lavoie] and
[Kahalewai] would get into over the course of their
relationship. After some of those arguments, youâre aware
that [Kahalewai] would leave [Lavoie], leave the family,
and go stay at friendsâ houses. Correct?
A. Yeah, for a couple of days.
Q. Okay. Sometimes even for like a week or two. Right?
A. Barely. Maybe once in a great, great while, depending
on how big the argument was before.
Q. One time she left for Oahu. Correct?
9
Det. Mahoney testified that he did not detect Lavoie to be under
the influence of alcohol or drugs during the interview. Det. Mahoney spent
five to six hours with Lavoie from the start of the interview through
transport back to Wailuku cellblock, and in that time, Lavoie did not say
that he was hearing voices or seeing anything on the night of the shooting.
8
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A. Yes.
Q. And she stayed away for like maybe a week and a half,
two weeks with your friend [Jamie Maikui]?
. . .
A. Yeah.
Q. Okay. On the night in question, [Kahalewai] had been
apart from [Lavoie] for approximately four days. Correct?
A. Yes.
Q. And you knew that for at least the last two days prior
to the shooting, [Lavoie] had been looking around for
[Kahalewai]. Right?
A. Yes.
Q. Okay. But [Kahalewai] wanted to stay out that night
because you guys had planned to do a girls night on the
20th. Right?
A. Yeah.
Q. Okay. And there was a bachelorette party--your
bachelorette party, right, that she had been attending over
those four days?
A. Yeah.
Q. And you knew that [Lavoie] was upset that [Kahalewai]
had been away for those four days. Right?
A. Yeah.
Following defense counselâs cross-examination of Aea,
the prosecutor requested a bench conference and asserted that,
because the defense asked about past arguments, âthe door has
been open for us to ask the nature of those arguments.â The
prosecutor stated that the testimony would show that âat least
some of these arguments involved a prior abuse, and [Kahalewai]
leaving to get away from the defendant.â Defense counsel
objected, arguing that the door had not been opened and that Aea
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had no personal knowledge of the reasons behind the various
separations between Kahalewai and Lavoie. The prosecutor sought
to introduce evidence of a prior incident from February 2007 in
which Lavoie threatened Kahalewai with a gardening pick in the
presence of Aea. Defense counsel objected to the introduction
of this incident on the grounds that it was more prejudicial
than probative given how temporally remote it was to the
shooting.
The trial court allowed the evidence, finding that the
door âperhapsâ had been opened not just for Aea but other
witnesses as well. Specifically, the trial court responded to
defense counsel as follows:
Because your line of questioning has suggested that
[Kahalewai]âs departure caused a reaction which caused him
to lose control of his thoughts and his actions, or
ultimately itâs going to be for the trier of fact to
determine whether or not, from the defendantâs standpoint,
if heâs been inflicting abuse on [Kahalewai], whether it
would be reasonable, from his standpoint, to then become
upset or enraged by her departure, such that it would mean
that the--that defense would be a viable one. And then
thereâs the whole 704 issues.
The prosecutor then asked Aea about arguments between
Lavoie and Kahalewai that she had witnessed. Aea testified that
Lavoie and Kahalewai had ânormal fights, there was no shock they
were grumbling; theyâd fight, she dig out, sheâd come back.â
These arguments were mostly about Kahalewai wanting more space
to âhang out with friends, [and] do her own thing,â Aea said.
Aea agreed that the type of argument the couple was having on
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the night of the shooting appeared to be ânothing new.â When
questioned about the February 2007 incident, Aea testified, over
defense objection, that she witnessed Lavoie âgrumblingâ with
Kahalewai before he picked up a gardening pick and said ânobody
going to find you, you guys.â There was no testimony that
Kahalewai left Lavoie after this incident.
The State sought to admit other instances of abuse by
Lavoie through Haliniakâs sister, Alexis Haliniak (A. Haliniak).
Before she took the stand, defense counsel requested a bench
conference where he requested a proffer from the State as to
what A. Haliniak would be testifying about and how her testimony
would relate to the opening of the door. The prosecutor
responded that it sought to introduce testimony about two prior
incidents of Lavoieâs abuse: one where A. Haliniak saw Lavoie
choke Kahalewai; and another where she witnessed Lavoie yell at
and allegedly threaten Kahalewai during a poker game. Lavoie
objected on the basis that these incidents were not relevant
because there was no indication that they had any connection to
â[Kahalewai] separating herself from [Lavoie], and that [Lavoie]
react[ed] violently to that separation.â
The court sustained Lavoieâs objection as to the poker
game incident because of the vagueness of Lavoieâs behavior
proffered by the State. As to A. Haliniakâs testimony regarding
the incident of alleged choking, the court ruled that the door
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had been opened and the incident held âsignificant probative
value concerning the reasonableness of the explanationâ for
Lavoieâs emotional distress. The trial court further ruled that
the reasonableness of the explanation, on one hand, trying
to cope with the loss of a partner is one thing. Causing
the loss of a partner by acts of physical abuse, and then
saying youâre overwhelmed by that may be viewed entirely
different by the trier of fact. And that may not be viewed
as reasonable. So I think the door has been opened to
that.
A. Haliniak then testified that two to four months
prior to October 2012, she witnessed Lavoie choking Kahalewai
until âthe color on [Kahalewai]âs face was turning a little
pinkish red.â Lavoie only stopped after her boyfriend
threatened to call the police, A. Haliniak testified. Again,
there was no testimony that Kahalewai left Lavoie after the
incident.
The State called Jamie Maikui, a close friend of
Kahalewai, to testify about a domestic violence incident that
occurred between Lavoie and Kahalewai on March 16, 2013--the
event that led to the separation before the shooting. Maikui
testified that while she and Kahalewai were driving, they saw
that Lavoie was following them in his car. They pulled into a
church parking lot and lit a cigarette, Maikui said, at which
point Lavoie approached the car; Kahalewai rolled the window
down to pass him a cigarette. Maikui testified that Lavoie then
opened the door with his spare key. Maikui stated that she
tried to drive away, but that Lavoie held on to the car until
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she stopped. She testified that after the car stopped, Lavoie
punched her three times and elbowed Kahalewai in the face in the
process of taking the keys from the ignition.
The State also attempted to question Maikui regarding
incidents when she had witnessed Lavoie âdo anything physical or
threatening to [Kahalewai] before.â After proffering that
Maikui would testify about the gardening pick incident that Aea
had testified about and an incident four to five years before
the shooting where, as Maikui was driving by, she saw Lavoie
punch Kahalewai, the court excluded the testimony over concerns
about the time frame. The prosecutor told the court that there
were further witnesses that he could bring in rebuttal to show a
continuing pattern of abuse followed by Kahalewai leaving Lavoie
but always returning.
The State also called as a witness Victoria Toledo.10
Toledo testified that, on the day of the shooting, Lavoie came
10
Prior to Toledo taking the stand, defense counsel stated in a
bench conference that he anticipated Toledo would testify regarding an
encounter with Lavoie that Toledo would claim occurred on the day of the
shooting. Counsel explained, however, that the prosecutor had disclosed that
Toledo had told the prosecutor, in an interview at which there were no other
witnesses present, that the encounter with Lavoie had occurred several days
before the shooting.
Defense counsel requested that the court preclude the State from
calling Toledo as a witness if the prosecutor was going to remain the Stateâs
lead attorney, as defense counsel would be forced to call the prosecutor as a
witness in the defense case. In response, the prosecutor suggested that at
defense counselâs request, he would make a representation on the record
before the jury as an officer of the court. Defense counsel agreed to the
prosecutorâs proposed procedure. Both the State and defense questioned
Toledo regarding the inconsistency of her accounts, but she maintained that
she had only ever given one version of events. Thus, in accordance with the
(continued . . .)
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to her apartment and asked her boyfriend if Kahalewai was
âfooling around on him.â She told Lavoie that Kahalewai was not
fooling around on him, Toledo stated, but Lavoie responded â[i]f
I canât have her no one will.â Toledo acknowledged on cross-
examination that she disliked Lavoie because he had killed her
friend, and that she did not relate her story to the police
because, despite saying they would follow up, they never
contacted her.11
Dr. Kohn, a neurologist, psychiatrist, and
psychotherapist was called to testify by the defense.12 Dr. Kohn
diagnosed Lavoie with bipolar disorder and testified that âas a
component of that mental disorder, [Lavoie] has been psychotic
on a recurring or continuous basis.â In his medical opinion,
Dr. Kohn stated, on March 20, 2013, Lavoie suffered a
âdissociative episode in which, faced with this experience that
(. . . continued)
agreed-upon procedure, at the completion of Toledoâs testimony, the
prosecutor stated in open court the following:
[P]ursuant to our bench conference, as an officer of the
court, Your Honor, I would like to put on record that on
July 18, 2014, in a telephone conversation with [] Victoria
Toledo, I recall her saying that Marlin Lavoie told her,
âIf I canât have Malia, nobody else will,â and that the
conversation took place a few days before the shooting.
11
At the close of the Stateâs case-in-chief, the parties stipulated
that prior to March 20, 2013, Lavoie was previously convicted of a felony.
12
Dr. Kohn testified that he was board certified in neurology by
the American Board of Psychiatry and Neurology and taught psychiatry at the
University of Chicago Medical School.
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was unmanageable for him, he could not think clearly.â13 Dr.
Kohn found that there were several âfactors that contributed to
[Lavoie]âs inability to understand what was happening to him and
to manage his feelings and actions.â These factors included
brain injury from repeated trauma, his family history of mental
illness, his history of being sexually abused as a child, and
his history of psychiatric treatment.14 Dr. Kohn testified that
these factors, compounded with Lavoieâs bipolar disorder,
âprevented him[] from controlling himself from understanding
what was happening and behaving in a way that would have been
expected of him.â As a result, Dr. Kohn opined, Lavoie lacked
substantial capacity to conform his conduct to the requirements
of the law. Dr. Kohn testified that Lavoie âhad awareness that
what he was doing was wrong and bad but wasnât able to stop
himself.â
Additionally, Dr. Kohn opined that Lavoie was under
the influence of an extreme mental or emotional disturbance
13
Dr. Kohn also testified that Lavoie told him that he was hearing
voices at the time.
14
Dr. Kohn testified that Lavoie experienced three instances of
sexual abuse as a child: once by his babysitter, and the other two incidents
involving âolder teenagers that [Lavoie] was riding bikes with in the
neighborhood.â Dr. Kohn stated that Lavoie told him that his mother said to
âget over it,â and his father âwas similarly unsupportive.â He further
testified that Lavoieâs mother had undergone a psychiatric hospitalization
and was diagnosed as being schizophrenic. As an adult, Dr. Kohn testified,
Lavoie had been institutionalized in the Alaska Psychiatric Institute for
manic episodes with psychosis.
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(EMED) at the time of the shooting. Dr. Kohn testified that
Lavoieâs mind was âdominated by intense emotion in a way that
altered his usual process of thought and interfered
substantially with his ability to reason.â This was brought
about by two main factors, Dr Kohn stated: first, Lavoie âwas
distraught over [Kahalewaiâs] absenceâ and âwas in the middle of
a reaction to separation and lossâ that caused him to be
depressed and suicidal; and second, Lavoie was âunable to manage
his feelings in reaction to [Kahalewaiâs] provocations,â
including when she mocked him with sexual taunts in front of
others, showing âher contempt rather than compassion for the
history that heâd revealed to her.â While Dr. Kohn testified
that Lavoie and Kahalewai had a âmutually abusiveâ relationship,
he said that those prior instances of violence were consistent
with his opinion.
The defense then called Dr. Marvin Acklin, who was
qualified as an expert in forensic psychology.15 Dr. Acklin
diagnosed Lavoie with âbipolar disorder type 1 versus disruptive
mood disorder,â and borderline personality disorder and
âperhaps, anti-social personality traits.â Several factors were
15
Dr. Acklin testified that he was board certified in psychology,
clinical psychology, and forensic psychology. He stated that he was a
professor of psychology at Loyola University of Chicago before becoming a
faculty member at the John A. Burns School of Medicine at the University of
HawaiďŁi in the department of psychiatry. In addition to his academic
experience, he also testified that he maintained an independent practice in
psychology.
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important in his diagnosis, Dr. Acklin testified: Lavoieâs
âextensive mental health history,â his familyâs history of
mental illness, the tests that Dr. Acklin had conducted on
Lavoie, the accounts of Lavoieâs relationship with Kahalewai,
the sexual abuse that Lavoie experienced as a child, and
Lavoieâs history of head trauma.
Dr. Acklin further testified that Lavoie had three
psychiatric âtreatment episodesâ: one in Alaska when Lavoie was
18, one in 2008 or 2009, and one after the shooting. Dr. Acklin
stated that Lavoie was admitted to the Alaska Psychiatric
Institute and was believed to be suffering from âsome form of
psychosis with paranoid delusions.â Lavoie was prescribed
Haldol, a âcommonly used antipsychotic medication,â both after
the Alaska hospitalization and after the shooting, Dr. Acklin
explained. Dr. Acklin concluded that at the time of the
shooting Lavoie was aware that what he was doing was wrong, but
he was not able to stop himself; that is, he âlacked substantial
capacity to conform his conduct to the requirements of the
law.â16
Dr. Acklin also concluded that at the time of the
shooting, Lavoie was under the influence of EMED as he was in a
16
Dr. Acklin indicated that Lavoie would not have âlacked
substantial capacity to control his actionsâ if he had a plan to kill
Kahalewai.
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state of desperation because he believed that Kahalewai was
abandoning him. Dr. Acklin testified that Lavoieâs feeling of
abandonment was a âprimary factorâ in his emotional disturbance,
but public shame also played a role. Kahalewaiâs leaving and
the âtraumatizing break upâ constituted a reasonable explanation
for Lavoieâs EMED, Dr. Acklin explained.
In addition, Dr. Acklin testified that Lavoieâs
relationship with Kahalewai involved âemotional turmoilâ and was
âunstable,â âstormy,â and abusive. He noted two particular
instances of physical abuse: first, the incident on March 16,
2013, when Lavoie elbowed Kahalewai in the face; and second, a
2008 conviction for abusing Kahalewai. Dr. Acklin also
testified on cross-examination that Lavoie wrote a note after
his 2008 conviction that âcould be construed as a threat to kill
himself.â17 Dr. Acklin stated that the threat did not influence
his ultimate opinion in the case.
17
Before testifying about the note, the court instructed the jury
that the âevidence is being offered in relation to the--or in connection with
the expertâs opinion, and it may be considered only on the issue of the
defendantâs intent and for no other purpose.â On rebuttal, the State called
Rochelle Tempo, an employee at MolokaďŁi Alternatives to Violence to testify
about the note and other oral statements that Lavoie made at that time. The
defense objected on the grounds that the evidence had already been admitted
through Dr. Acklin and further testimony about the statements would be
cumulative and prejudicial. The prosecutor responded that the statement had
not previously been admitted for substantive purposes and that it was now
attempting to do so. The court overruled the objection and instructed the
jury that the evidence, if believed, was to be âconsidered only on the issue
of the defendantâs intent to commit the offenses charged in this case.â
18
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Lavoie called Dr. Martin Blinder, who was qualified as
an expert in the fields of âpsychiatry, forensic psychiatry, and
mental state at the time of the offense.â18 Dr. Blinder
diagnosed Lavoie with having post-traumatic encephalopathy
caused by âhead/brain injury due to multiple blows,â post-
traumatic stress disorder as a result of being sexually abused
and physically assaulted throughout his lifetime, and
schizophrenic spectrum disorder. At the time of the shooting,
Dr. Blinder testified, Lavoie experienced a dissociative episode
and therefore had no useful judgment over his decision-making
process.19
Dr. Blinder stated that the main stressor that
contributed to Lavoieâs dissociative episode was the pattern of
inconsistency in his relationship with Kahalewai; in the months
leading up to the shooting, the relationship was âhot and cold.â
Lavoieâs âpsychic survival depend[ed] on remaining connected to
[Kahalewai], so [he went] through months and years of these
increasing stressors rather than going out the door,â Dr.
Blinder testified. And finally, Dr. Blinder said, âit reache[d]
18
Dr. Blinder testified that he was a licensed psychiatrist, was
the chief of private inpatient psychiatric services at the University of
California Hospital in San Francisco, and taught at University of California
at Hastings law school for 17 years before his retirement.
19
Dr. Blinder testified that the fact Lavoie had a gun in his car
that night was not necessarily reflective of a plan to commit the shooting.
Dr. Blinder stated that Lavoie told him that the rifle was in the car because
he was planning to sell it.
19
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the point where after years of this, [Lavoie] flipped out.â
This culminated in gaps in Lavoieâs memory on the night of the
shooting, particularly after Kahalewaiâs friends began laughing
at him, Dr. Blinder testified. As a result of Lavoieâs
dissociative episode, Dr. Blinder concluded, Lavoie knew the
difference between right and wrong but lacked substantial
capacity to conform his conduct to the requirements of the law.
After the defense rested its case, the State recalled
Haliniak during its rebuttal case. During her rebuttal
testimony, Haliniak testified about two additional incidents
between Lavoie and Kahalewai. Before she was called, the
parties and the judge had a bench conference where defense
counsel objected to the admission of the two incidents. The
prosecutor argued that the incidents rebutted the notion that
the shooting came from a psychiatric disorder and showed an
abusive relationship rather than a mental disorder. The court,
in overruling Lavoieâs objection, noted that defense counsel
elicited opinions as to both the EMED and a lack of penal
responsibility defenses, so the prosecution could be rebutting
either.
The first incident, Haliniak said, occurred while she
and Kahalewai were playing poker in Haliniakâs house. Haliniak
testified that Lavoie was sleeping upstairs at the time and came
downstairs after the poker game awoke him. He âwas very upset
20
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that [Kahalewai] didnât wake him up to play,â punched the beam
that supported the porch, and tried to grab Kahalewaiâs arm
while yelling at her in a âvery loud, angry tone,â Haliniak
stated.
Haliniak also testified about an incident in the
spring of 2012 when Haliniak stated she was picking up Kahalewai
from school and Lavoie confronted Kahalewai. Haliniak said that
Kahalewai told Lavoie that she did not want to talk to him so he
grabbed her and head-butted her. Haliniak testified that
Kahalewai then got into Haliniakâs van and the two drove off
while Lavoie was telling Kahalewai not to go with her.
The State also recalled Maikui to testify about a
previously excluded incident in 2007 or 2008 when she saw Lavoie
punch Kahalewai in his car. The defense objected that the
incident was âextremely remote in time in relation to the
[shooting],â prejudicial, and not probative. The court
overruled the objection, stating that the incident would be
admitted because, during Lavoieâs case-in-chief, there was âa
significant amount of testimony concerning the [E]MED
[defense].â Maikui then testified that in 2007 or 2008, as she
was driving by, she saw Lavoie punch Kahalewai in the arm.
Maikui said that she turned her car around and took Kahalewai
away from the scene.
21
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There was no testimony that Kahalewai had separated
from Lavoie after any of the incidents about which Haliniak or
Maikui testified.
The State also called Dr. George Choi and Dr. Tom
Cunningham from the court-ordered panel that had examined
Lavoie. Both doctors were admitted as experts in the field of
forensic psychology.20 Based on his evaluation of Lavoie, Dr.
Choi diagnosed him with substance abuse induced mood disorder.
He testified that his opinion was based on the inconsistencies
in Lavoie reporting his psychiatric symptoms to different people
over time and Lavoieâs tendency to over-report psychiatric
symptoms. Dr. Choi stated that Lavoieâs ability to control
himself on the night of the shooting was impaired and his
ability to know right from wrong in that moment was âmoderatelyâ
impaired, but that Lavoie was not âsubstantiallyâ impaired in
his capacity to know right from wrong or conform his conduct to
the law.
Dr. Cunningham opined that Lavoie was âmalingering,
exaggerating symptoms, or inventing them completely.â Lavoie
did not lack substantial capacity to appreciate the wrongfulness
of his conduct, Dr. Cunningham testified, nor did he lack
20
Dr. Choi testified that he was a licensed psychologist and had a
private psychology practice. Dr. Cunningham stated that he was licensed in
psychology and had worked at the HawaiďŁi State Health Department as a
psychologist since 1988.
22
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substantial capacity to conform his conduct to the requirements
of the law. Dr. Cunningham said that he came to this conclusion
because of âinconsistencies in the recordâ such as Lavoieâs
âauditory hallucinations.â In Dr. Cunninghamâs opinion, Lavoie
was very angry when he shot Kahalewai.21
The State also called Dr. Valli Kalei Kanuha to
testify as an expert in the field of domestic violence. Dr.
Kanuha stated that, in general, when there is an intimate
relationship between a male and female, a man may abuse a woman
because societal norms make the man think that he is the one in
charge of the relationship and the woman should do what the man
wants. Dr. Kanuha testified that batterers often view
themselves as the victims and that it is common for a batterer
to cry or beg when the partner threatens to leave the
relationship.
At the conclusion of the evidence, the court
instructed the jury that if it found that the State proved all
elements of the charged offenses beyond a reasonable doubt, then
21
Dr. Cunningham did not believe that Lavoieâs family history of
mental illness was a significant consideration, did not consider Lavoieâs
abuse by his father to be significant to his analysis, did not mention
Lavoieâs history of being sexually abused in his report, and did not consider
it relevant that Lavoie was placed on suicide watch from March 22 through
April 17, 2013 and again on August 5, 2013. In addition, Dr. Cunningham
acknowledged that he did not review medical records of Lavoieâs head injuries
although they were provided to him. Dr. Cunningham also opined that Lavoieâs
anger was exacerbated by drinking during the day, although he acknowledged on
cross-examination that there was no evidence in any of the police reports
that Lavoie was intoxicated.
23
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the jury must consider whether Lavoie was criminally responsible
for his conduct.22 The courtâs instruction about prior bad acts
stated the following:
During this trial, you have heard evidence that the
defendant at other times may have engaged in or committed
crimes, wrongs or acts. This evidence, if believed by you,
may be considered only on the issue of defendantâs intent
to commit the offenses charged in this case. Do not
consider this evidence for any other purpose. You must not
use this evidence to conclude that because the defendant,
at other times, may have engaged in or committed other
crimes, wrongs or acts, that he is a person of bad
character and, therefore, must have committed the offenses
charged in this case.
The court instructed the jury that an EMED defense to
murder has two elements: (1) that Lavoie was under the influence
of EMED; and (2) there was a reasonable explanation for the EMED
as determined from the viewpoint of a reasonable person under
the circumstances that Lavoie believed them to be. In addition,
the court instructed the jury that Lavoieâs âself-control or
lack of it at the time of the offense is a significant factor in
determining whether he was under the influence of [EMED].â
Lavoie objected to this instruction, arguing that it
unnecessarily highlighted and isolated self-control.
The court also instructed the jury as to the elements
of the offenses of possession of a prohibited firearm (felon in
22
The court instructed the jury that â[t]he defendant is not
criminally responsible for his conduct if, at the time of the offense and as
a result of a physical or mental disease, disorder or defect, the defendant
lacked substantial capacity either to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of the law.â
24
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possession) and place to keep loaded firearms (place to keep).
As to the felon in possession offense, the jury was instructed
that to convict Lavoie of this offense they must find that he
knowingly possessed the firearm on March 20, 2013. As to the
place to keep offense, the jury was informed that to convict
Lavoie of this offense they must find that he intentionally
possessed the loaded firearm on March 20, 2013, in a place other
than in a place of business, residence, or sojourn. The court
did not provide, nor did the parties request, a merger
instruction.
Lavoie was found guilty as charged on all the
offenses. On August 13, 2015, the circuit court denied Lavoieâs
Motion to Compel State to Dismiss Count 3 or 4 Due to Merger.
The court ruled that there was no merger of the offenses because
the felon in possession offense was committed prior to Lavoie
leaving his home on March 20 and the place to keep offense
occurred when the firearm was being transported to the scene of
the shooting; thus, no merger instruction was required.
Lavoie was sentenced to a life sentence with the
possibility of parole in Count 1, twenty years in prison in
Count 2, and ten years in prison each in Count 3 and Count 4.
The court ordered that Counts 1 and 2 be served concurrently,
and Counts 3 and 4 be served consecutively to each other and
consecutively to Counts 1 and 2. Lavoie appealed from the
25
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judgment of conviction and sentence to the Intermediate Court of
Appeals (ICA).
II. ICA PROCEEDINGS
The ICA in its Memorandum Opinion first addressed
Lavoieâs objection to the lack of a jury instruction defining
EMED. The ICA concluded that State v. Haili, 103 HawaiďŁi 89, 79
P.3d 1263 (2003), was dispositive because it held that EMED was
not defined by the legislature, and thus the courts need not
define it in their jury instructions. Further, the ICA stated
that while HRS § 707-702(2) does not refer to self-control,
HawaiďŁi courts have repeatedly recognized that it is a
significant factor in EMED determinations.23
Turning to the merger instruction, the ICA
acknowledged that âHawaiďŁi case law indicates that felon-in-
possession and place-to-keep charges are often intertwined, in
turn necessitating a merger instruction.â However, the ICA
agreed with the circuit court that the felon in possession
offense was completed before Lavoie left his house on March 20,
23
HRS § 707-702(2) (1993 & Supp. 2003) provides as follows:
(2) In a prosecution for murder or attempted murder in the first
and second degrees it is an affirmative defense, which reduces
the offense to manslaughter or attempted manslaughter, that the
defendant was, at the time the defendant caused the death of the
other person, under the influence of extreme mental or emotional
disturbance for which there is a reasonable explanation. The
reasonableness of the explanation shall be determined from the
viewpoint of a reasonable person in the circumstances as the
defendant believed them to be.
26
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2013, and the place to keep offense was committed when the
firearm was placed in Lavoieâs car.24 Thus, the ICA held that
the circuit court did not err in failing to give a merger
instruction.
The ICA also found no error in the circuit courtâs
limiting instruction about the use of prior bad acts. The ICA
concluded that the jury instruction limited the juryâs use of
Lavoieâs prior bad acts in compliance with HawaiďŁi Rules of
Evidence (HRE) Rule 404(b), which permits prior bad acts if such
evidence is probative of intent. The ICA relied on State v.
Maelega, 80 HawaiďŁi 172, 907 P.2d 758 (1995), and held that the
prior bad acts were relevant to rebut Lavoieâs EMED defense
because such acts were probative of his intent.
Finally, the ICA affirmed the circuit courtâs
determination that Lavoie opened the door to allow the State to
elicit testimony of Lavoieâs prior bad acts. The ICA stated
that the defenseâs cross-examination questions about arguments
24
The ICA quoted an unpublished ICA memorandum opinion stating that
[Place to keep] is not defined as a continuing course of
conduct; it is a prohibition against transporting firearms.
Once the person takes the firearm out of a place of
business, residence, or sojourn--but for certain
exceptions--the offense is complete. The fact that the
offense may continue beyond this point does not change the
character of the offense.
See State v. Lavoie, NO. CAAP-XX-XXXXXXX, 2018 WL 4613329(Haw. App. Apr. 23 2018) (quoting State v. Stangel, No. CAAP-XX-XXXXXXX,2015 WL 836928
(Haw. App. Feb. 26, 2015)).
27
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between Lavoie and Kahalewai during the course of their
relationship opened the door because the questions were relevant
to Lavoieâs EMED defense. The ICA concluded that the circuit
court did not err in ruling that the defenseâs line of
questioning suggested that the separation between Lavoie and
Kahalewai caused Lavoie to lose self-control, and that the jury
would have to determine whether it was reasonable for Lavoie to
lose self-control if his abuse led to the separation.
The ICA accordingly affirmed the judgment of the
circuit court.25 Lavoie timely filed an application for writ of
certiorari, which this court accepted.
III. STANDARDS OF REVIEW
A. Conclusions of Law
Conclusions of law are reviewed de novo under the
right/wrong standard of review. Maria v. Freitas, 73 Haw. 266,
270,832 P.2d 259, 262
(1992).
B. Jury Instructions
The propriety of jury instructions is a question of
law reviewed de novo using the following standard: whether,
âwhen read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
25
Lavoie also raised other issues on appeal that were rejected by
the ICA but not raised on certiorari review; these issues are not discussed.
28
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misleading.â State v. Bovee, 139 HawaiďŁi 530, 537, 394 P.3d 760,
767(2017) (quoting State v. Frisbee, 114 HawaiďŁi 76, 79,156 P.3d 1182, 1185
(2007)).
C. Prior Bad Acts
The admissibility of evidence requires different
standards of review depending on the particular rule of evidence
at issue. State v. Fetelee, 117 HawaiďŁi 53, 62, 175 P.3d 709,
718(2008); State v. Pulse, 83 HawaiďŁi 229, 246,925 P.2d 797, 814
(1996).
âPrior bad actâ evidence under [HRE] Rule 404(b) . . . is
admissible when it is 1) relevant and 2) more probative
than prejudicial. A trial courtâs determination that
evidence is ârelevantâ within the meaning of HRE Rule 401
. . . is reviewed under the right/wrong standard of review.
However, a trial courtâs balancing of the probative value
of prior bad act evidence against the prejudicial effect of
such evidence under HRE Rule 403 . . . is reviewed for
abuse of discretion. An abuse of discretion occurs when
the court clearly exceeds the bounds of reason or
disregards rules or principles of law to the substantial
detriment of a party litigant.
State v. Behrendt, 124 HawaiďŁi 90, 102, 237 P.3d 1156, 1168
(2010) (alterations in original).
IV. DISCUSSION
Lavoie first argues that the evidence of prior bad
acts was inadmissible because it did not rebut an EMED defense
or a defense of lack of penal responsibility. Because such
evidence is inadmissible, Lavoie contends, he could not have
opened the door to admission of the prior bad acts.
29
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A defendant can be relieved of penal responsibility if
the defendant proves that âat the time of the conduct as a
result of physical or mental disease, disorder, or defect the
person lacks substantial capacity either to appreciate the
wrongfulness of the personâs conduct or to conform the personâs
conduct to the requirements of the law.â HRS § 704-400(1)
(1993).26
Additionally, HRS § 707-702(2) provides that EMED is a
mitigating affirmative defense in a prosecution for murder that
applies when the defendant was, at the time the defendant caused
the death of another person, under the influence of extreme
mental or emotional disturbance for which there is a reasonable
explanation. The reasonableness of the explanation shall be
determined from the viewpoint of a reasonable person in the
circumstances as the defendant believed them to be. If this
defense is proved, it reduces the offense of murder to
manslaughter. Id.
26
HRS § 704-400(1) provides as follows:
(1) A person is not responsible, under this Code, for
conduct if at the time of the conduct as a result of
physical or mental disease, disorder, or defect the
person lacks substantial capacity either to
appreciate the wrongfulness of the personâs conduct
or to conform the personâs conduct to the
requirements of law.
30
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A. Lavoieâs Prior Bad Acts
1. Lavoie Did Not âOpen the Doorâ to Prior Instances of Abuse
Lavoie argues that the circuit court improperly ruled
that he opened the door to prior acts by cross-examining Aea
about prior instances in which Lavoie and Kahalewai separated.
âThe âopening the doorâ doctrine is essentially a rule
of expanded relevancy . . . .â State v. James, 677 A.2d 734,
742(N.J. 1996). âUnder this doctrine, when one party introduces inadmissible evidence, the opposing party may respond by introducing [] inadmissible evidence on the same issue.â State v. Fukusaku, 85 HawaiďŁi 462, 497,946 P.2d 32, 67
(1997)27; see also State v. Dvorak,295 S.W.3d 493, 502
(Mo. Ct. App. E.D. 2009) (the doctrine applies after one party introduces inadmissible evidence). Admissible evidence therefore does not âopen the doorâ to otherwise inadmissible evidence. State v. Middleton,998 S.W.2d 520, 528
(Mo. 1999) (âA party may not,
however, introduce inadmissible evidence to rebut inferences
27
The âopening the door doctrineâ is also sometimes referred to as
the doctrine of âcurative admissibility.â In Fukusaku, we stated that
[a]lthough the Prosecution cites no authority, its argument
appears to be based on the doctrine of âcurative
admissibility,â also known as âopening the doorâ or
âfighting fire with fire.â Under this doctrine, when one
party introduces inadmissible evidence, the opposing party
may respond by introducing his own inadmissible evidence on
the same issue.
85 HawaiďŁi at 496, 946 P.2d at 67 (1997). The Fukusaku court referred to the
doctrines of âopening the doorâ and âcurative admissibilityâ interchangeably.
We will also do so in this opinion, although it is noted that not all
jurisdictions treat the doctrines with a singular meaning.
31
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raised by the introduction of admissible evidence during cross-
examination.â).
Here, during cross-examination, Aea was asked whether
she was âaware that [Kahalewai] would leave [Lavoie], leave the
family, and go stay at friendsâ housesâ after arguments between
Kahalewai and Lavoie. Aea responded that she was aware of the
past arguments and separations. On redirect, Aea clarified that
the arguments leading to the separations generally involved
Kahalewaiâs desire to socialize with her friends, which was
typically not possible because there was neither internet nor
phone service at the home that she shared with Lavoie in
Honouliwai Valley.
Based on defense counselâs questioning, the circuit
court admitted into evidence six prior incidents of abuse that
it had previously ruled inadmissible, reasoning that the door
had been opened by Aeaâs testimony. First, Aea testified that
six years prior to the shooting, she witnessed Lavoie threaten
Kahalewai with a gardening pick. There was no testimony,
however, that this incident resulted in Kahalewai leaving Lavoie
for any period of time. Second, Alexis testified that she saw
Lavoie choke Kahalewai roughly eight to ten months before the
shooting. Again, there was no testimony that Kahalewai left
Lavoie as a result of this incident. Testimony regarding two
more incidents of abuse that occurred in the year prior to the
32
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shooting was elicited from Haliniak, including a time when
Lavoie punched a beam and yelled at Kahalewai while trying to
grab her arm and an instance in which Lavoie head-butted
Kahalewai. There was no testimony that either of these
incidents resulted in Kahalewai leaving Lavoie. And Maikui
testified during the Stateâs rebuttal that six years before the
shooting, she saw Lavoie punch Kahalewai in the arm. Once
again, the witness did not testify that this incident resulted
in Kahalewai leaving Lavoie.
Each of these instances garnered objections from
defense counsel, who argued that, because there was no clear
connection between the instances of abuse and the arguments
between Lavoie and Kahalewai that led to the previous
separations, the testimony was irrelevant and unfairly
prejudicial. Only the March 16, 2013 incident that led to the
separation between Lavoie and Kahalewai immediately preceding
the shooting was not objected to. Because this incident did
result in a separation, defense counsel appears to have
implicitly conceded that it was relevant to the reasonableness
of Lavoieâs EMED resulting from the separation.
As stated, the opening the door doctrine generally
does not allow a party to admit evidence that is otherwise
inadmissible to rebut an opponentâs relevant and admissible
evidence. Clark v. State, 629 A.2d 1239, 1244 (Md. 1993). This
33
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court previously addressed a similar issue in State v. Fukusaku,
85 HawaiďŁi 462, 496, 946 P.2d 32, 66(1997). In Fukusaku, the trial court ruled that expert testimony about positive luminol and phenolphthalein test results indicating the presence of blood in some areas of a defendantâs apartment was inadmissible because, in the absence of secondary confirmation tests, the luminol and phenolphthalein tests were not relevant.28Id.
On cross-examination, defense counsel elicited testimony from the expert about the absence of blood on any of the cushions in the defendantâs apartment.Id.
The State argued that the defense had opened the door to the previously inadmissible positive test results by questioning the expert about blood samples.Id.
The circuit court ruled that the defense had not opened the door.Id.
This court, in affirming the circuit court, concluded
that general testimony about the nonpresence of blood samples--
which was admissible on its own--did not open the door to
testimony about the inadmissible positive test results. Id. at
497, 946 P.2d at 67. This court construed the Stateâs argument
as an appeal to the doctrine of âcurative admissibility,â under
28
The tests at issue could generate false positive reactions, could
not distinguish between animal blood and human blood, and could not determine
how long the blood had been at the scene. Fukusaku, 85 HawaiďŁi at 496, 946
P.2d at 66. No evidence was offered that the tests were likely to render false negatives. Id. at 497,946 P.2d at 67
.
34
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which âwhen one party introduces inadmissible evidence, the
opposing party may respond by introducing his own inadmissible
evidence on the same issue.â Id.We noted that this doctrine, often referred to as âfighting fire with fire,â is subject to abuse and âmost jurisdictions have limited its use to situations in which the originally submitted evidence creates significant prejudice.âId.
(citing 1 Wigmore on Evidence § 15, at 741-42 &
n.6 (1983)). This court then ruled that, because the testimony
elicited by defense counsel regarded negative test results,
which had not been shown to be unreliable and which the trial
court expressly ruled were not covered by its exclusion order,
the testimony was admissible. Id. We therefore concluded that
âeven if we were to adopt the doctrine of curative
admissibility, it would not be applicable to the present case.â
Id.
Parallels may be drawn between Fukusaku and the case
at hand. Here, the circuit courtâs ruling on Lavoieâs motion in
limine specifically excluded evidence involving allegations of
prior violence in much the same manner as the trial courtâs
order in Fukusaku excluded evidence of positive test results.
And, like the negative test results in Fukusaku, evidence of
previous arguments between Lavoie and Kahalewai that led to
separations and did not involve violent acts by Lavoie were not
within the ambit of the courtâs order. Thus, as in Fukusaku,
35
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Lavoie âintroduced admissible evidence, not inadmissible
evidence,â and the doctrine of curative admissibility is simply
inapplicable to the present case.29 Id.
The State cites authority from other jurisdictions for
the proposition that the door may also be opened to inadmissible
evidence when a party offers admissible evidence that is false
or misleading if considered in isolation.30
As an initial matter, this court may have implicitly
rejected the rule the State argues for in Fukusaku, in which the
State appeared to contend that the defendant had presented
incomplete and misleading testimony by focusing on the lack of
blood on the cushions in his apartment while not acknowledging
that the luminol and phenolphthalein tests had indicated that
29
Our discussion of the âopening the doorâ doctrine addresses the
situation in which inadmissible evidence is offered in response to the
introduction of admissible evidence. The doctrine has also been applied to
authorize the introduction of evidence that would otherwise have been
irrelevant in order to respond to admissible evidence that generates an
issue. See, e.g., Clark, 629 A.2d at 1242â43. Because we conclude in this
case that the testimony about prior incidents of abuse is inadmissible, see
infra Part IV.A.2 and Part IV.A.3, it is not necessary to consider adoption
of this variant of the curative admissibility doctrine or of the doctrine
itself because even if we were to do so, âit would not be applicable to the
present case.â See Fukusaku, 85 HawaiďŁi at 497, 946 P.2d at 67.
30
See, e.g., Valadez v. Watkins Motor Lines, Inc., 758 F.3d 975,
981(8th Cir. 2014) (holding that a party may open the door to inadmissible evidence to the extent that the inadmissible evidence âclear[s] up [a] false impressionâ or âclarify[ies] or complete[s] an issue opened up by [opposing] counselâ) (last alteration in original); United States v. Osazuwa,564 F.3d 1169, 1175
(9th Cir. 2009) (same); United States v. Brown,921 F.2d 1304, 1307
(D.C. Cir. 1990) (same); State v. Carlson,146 N.H. 52, 56
(2001) (same). The ICA, in an unpublished memorandum opinion, has adopted such a rule. See State v. Awana, No. 27145,2007 WL 1139407
at *14 (Haw. App. Apr.
13, 2007) (âAs an evidentiary principle, the âopening the doorâ doctrine
allows the admission of otherwise inadmissible evidence, including hearsay,
to qualify, explain, or limit testimony or evidence previously elicited.â).
36
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blood may have been present elsewhere in the apartment.
85 Hawaiâi at 496, 946 P.2d at 66. Additionally, such a rule
would not apply here even if this court were to adopt it because
no aspect of Aeaâs testimony was shown to be false or
misleading. Aea testified generally on cross-examination about
Lavoie and Kahalewaiâs prior arguments that led to periods of
separation, which generally involved Kahalewaiâs desire to
socialize with her friends. None of the incidents of abuse
elicited over defense objection contradicted or clarified Aeaâs
testimony because it was never shown that the incidents had any
relation to the separation-causing arguments about which Aea had
testified. Thus, because there is no indication that Aeaâs
testimony was likely to convey a false impression, it is
unnecessary for this court to consider a situation in which
admissible evidence is so misleading that it would justify the
admission of otherwise inadmissible evidence to correct it.31
We have held that admissible evidence--here, Aeaâs
testimony about Lavoie and Kahalewaiâs previous arguments that
led to periods of separation and did not clearly involve
incidents of abuse--generally does not open the door to
inadmissible evidence, see 85 Hawaiâi at 496, 946 P.2d at 66, and
31
Because the opening the door doctrine does not apply here, we
decline to address Lavoieâs contention that the door may only be opened
during the defendantâs case-in-chief.
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no possible exception to this rule applies. Thus, the
admissibility of the testimony regarding Lavoieâs prior bad acts
must be evaluated on its own merit, and not in relation to Aeaâs
testimony.
2. The Prior Bad Acts Were Inadmissible to Rebut Lavoieâs EMED
Defense
The circuit court ruled that evidence of Lavoieâs
prior bad acts was admissible to rebut Lavoieâs EMED defense.
The circuit court reasoned that a central issue in the case was
whether Lavoie was experiencing EMED when the shooting occurred,
and, if so, whether the EMED Lavoie experienced was a reasonable
response to, inter alia, Kahalewai having left him. The court
stated that â[c]ausing the loss of a partner by acts of physical
abuse, and then saying youâre overwhelmed by that . . . may not
be viewed as reasonable.â Thus, the court ruled that the prior
incidents âcarrie[d] significant probative value concerning the
reasonableness of the explanation.â
This courtâs decision in State v. Castro is highly
informative in deciding the present issue. In Castro, the
defendant was convicted of attempted murder and assault in the
second degree after he tried to kill his estranged girlfriend.
69 Haw. 633, 639-42,756 P.2d 1033, 1039-40
(1988). At trial,
the defendant asserted that he was under the influence of EMED
and that there was a reasonable explanation for his EMED at the
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time the offense was committed. Id. at 641,756 P.2d at 1040
. The trial court admitted testimony about several prior incidents when the defendant committed acts of violence against the victim to demonstrate the defendantâs âintent, preparation, plan, knowledge, and modus operandiâ regarding the attempted murder.Id. at 644
,756 P.2d at 1042
.
On review, this court vacated the conviction, holding
that, when the identity of the perpetrator is not in doubt,
there is very little justification for admitting evidence of a
defendantâs prior bad acts under HRE Rule 404(b) to demonstrate
the defendants plan, preparation, knowledge, or modus operandi.
Id. at 645,756 P.2d at 1042
. We held that, even if the prior acts had some âincremental probative valueâ with regard to the defendantâs state of mind when the offense was committed, they were nonetheless inadmissible under HRE Rule 403 because their relevancy was far outweighed by their potential for unfair prejudice.Id. at 645
,756 P.2d at 1042
. This court explained that the prior bad acts were not needed to prove intent because âthere was much more from which an inference of intentional conduct could be drawn in the evidence of the offense for which the defendant was being tried.âId. at 644
,756 P.2d at 1042
.
Instead of following this courtâs precedent in Castro,
the ICA relied on State v. Maelega in affirming the circuit
court. In Maelega, this court held that the circuit court did
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not abuse its discretion in admitting evidence of a defendantâs
past abuse of his wife. 80 HawaiďŁi 172, 184, 907 P.2d 758, 770(1995). The State introduced instances of abuse to show that the defendant was trying to control or discipline his wife at the time of the offense and that he had not lost self-control under EMED.Id.
at 175 n.3,907 P.2d at 761
n.3.
The circuit court concluded, and we agreed, that the
prior bad acts were probative to rebut both prongs of EMED; the
acts âtend[ed] to show that [Maelega] acted with self-control at
the time that he allegedly killed his wifeâ and that âeven if
[Maelega] did not act with self-control, then there was no
âreasonable explanationâ for his extreme mental or emotional
disturbance.â Id. at 184, 907 P.2d at 770. This court relied on the trial courtâs findings of fact that (1) âvery little time [] elapsed between the prior act evidence and the [] charged offense,â (2) there was a âgreat needâ for the evidence to scrutinize the relationship between the defendant and the victim, and (3) the prior acts were not âof the nature which will rouse the jury to overmastering hostility.â Id. at 183-84,907 P.2d at 769-70
(emphases omitted).
Here, as in Castro, the evidence of Lavoieâs prior
abuse had little, if any, probative value as to his state of
mind at the time of the shooting or to its reasonableness.
Lavoieâs EMED defense stemmed from the stress that he felt after
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Kahalewai said she would leave him, coupled with Kahalewaiâs
insults and references to his childhood sexual trauma
immediately prior to the shooting. The evidence of his prior
abuse of Kahalewai was not probative of the presence or
reasonableness of Lavoieâs EMED because the witnesses testifying
to the incidents did not link the abuse to Kahalewai leaving
Lavoie. Absent such a link, Lavoieâs prior bad acts were not
relevant to the reasonableness of Lavoieâs EMED at the time of
the shooting.
Unlike in Maelega, the State did not establish a
direct link between Lavoieâs prior bad acts and the killing
because the State did not provide any direct testimony
indicating that the incidents of abuse were evidence that was
incompatible with EMED in this case. Id.at 175 n.3,907 P.2d at 761
n.3. Further, the court in Maelega relied in part on the fact that âvery little timeâ had elapsed between the prior bad acts evidence and the charged offense; in fact, all of the instances of abuse occurred within four months of the incident. Id. at 174, 183,907 P.2d at 760, 769
. The instances of
Lavoieâs abuse, by contrast, date as far back as six years
before the offense.
Out of the six prior instances of abuse that the State
elicited, only one--the March 16 incident that led to the
separation that immediately preceded the shooting--was linked to
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a separation between Lavoie and Kahalewai. In the absence of
evidence that the other instances of abuse were a motivating
factor in Kahalewaiâs leaving, the incidents had no bearing on
whether Lavoie was extremely emotionally disturbed as a result
of the separation and, if so, whether that disturbance was a
reasonable reaction. Thus, these prior acts were not relevant
to rebut an EMED defense.
Even if this court were to hold that these instances
of abuse had some slight relevancy to Lavoieâs EMED defense and
were thus admissible under HRE Rule 404(b), they should
nonetheless have been excluded under HRE Rule 403. When prior
bad acts are relevant to prove a fact of consequence, âthe trial
court is still obliged to exclude the evidence âif its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.ââ
Castro, 69 Haw. at 643,756 P.2d at 1041
(quoting HRE Rule 403).
Thus, were we to conclude that the incidents of abuse were a
motivating factor that led Kahalewai to separate from Lavoie--a
fact for which there is no clear evidence in the record--the
incidents would still be of only marginal probative value
because they represent only one reason out of many for
Kahalewaiâs dissatisfaction. Indeed, Aea testified that the
separations were primarily caused by other factors, including
Kahalewaiâs desire for âspace,â to âhang out with friends,â and
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to âdo her own thing,â which was made particularly difficult
given the remote location and lack of phone and internet service
in the home she shared with Lavoie.
On the other hand, evidence of the prior abuse had a
great potential for unfair prejudice to Lavoie because there is
a danger that a jury would consider the instances of abuse as
propensity evidence, inferring that because Lavoie had committed
abuse in the past, he was acting in the same manner when he shot
Kahalewai. Such an inference is expressly prohibited under HRE
Rule 404(b). Further, given the justifiable stigma attached to
domestic abusers in the eyes of the public, evidence that Lavoie
had committed domestic abuse was highly likely to ârouse the
jury to overmastering hostilityâ towards him. State v. Renon,
73 Haw. 23, 38,828 P.2d 1266, 1273
(1992). As we held in
Castro, the testimony should have been excluded even if it bore
some slight relevance as to the presence or reasonableness of
Lavoieâs EMED because it was far more prejudicial than it was
probative.
3. The Prior Bad Acts Were Inadmissible to Rebut Lavoieâs Lack
of Penal Responsibility Defense
At several points during the trial in this case, the
circuit court suggested that Lavoieâs prior bad acts were
potentially relevant to rebut his lack of penal responsibility
defense. This court has not foreclosed the use of prior bad
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acts evidence to rebut a lack of penal responsibility defense.
See State v. Morishige, 65 Haw. 354, 365,652 P.2d 1119, 1127-28
(1982) (affirming the admission of expert testimony of the
defendantâs criminal history to show that the defendant had an
âanti-social personalityâ rather than a mental disorder).
Here, however, the prior bad acts had no probative
value to rebut Lavoieâs lack of penal responsibility defense
because, unlike in Morishige, the incidents were not introduced
through expert testimony to refute a diagnosis of a mental
disorder or lack of capacity, and there was accordingly no
showing that the abuse was inconsistent with any aspect of
Lavoieâs lack of penal responsibility defense. We expressly
noted in Morishige that the testimony was not offered to show
propensity, but rather was âelicited to rebut a clinical
psychologist called by the defense who testified the defendant
was suffering from an acute mental disorder that âprevented him
from knowing right from wrongâ and âfrom conforming his behavior
to the requirements of the law.ââ Id. at 364-65,652 P.2d at 1127
. In this case, testimony regarding Lavoieâs prior bad acts
may have been admissible had the State first elicited it from
the defenseâs expert witnesses on cross-examination for the
purpose of demonstrating that the underlying bases of the
expertsâ diagnoses of Lavoie were incomplete or did not support
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their conclusions.32 See HRE Rule 704. In fact, the State did
so during its cross-examination of Dr. Acklin, questioning
whether he was aware of the specific instance of abuse that
precipitated the separation immediately prior to the shooting.
Alternatively, the instances may have been referenced through
the testimony of the Stateâs own experts as a basis for their
contrary diagnoses.33
The acts of abuse did not serve to rebut Lavoieâs
expertsâ diagnoses, however. Several of the instances of abuse
were introduced during the Stateâs case-in-chief, before
Lavoieâs experts testified. Moreover, there was never any
showing that the instances of abuse were inconsistent with the
defenseâs or the Stateâs expertsâ diagnoses. Indeed, Dr. Acklin
testified that the instance of abuse that caused the separation
immediately preceding the shooting and the other prior instances
of abuse of which he was aware were wholly consistent with his
32
The State itself acknowledged the distinction between offering
prior misconduct to challenge the underlying bases of the expert opinions and
its use for other purposes when the State distinguished between its initial
proffer of the note during the cross-examination of Dr. Acklin and its
subsequent proffer to admit the note incident for substantive purposes during
the testimony of Tempo on rebuttal.
33
In either case, the evidence would have been subject to HRE Rule
403 balancing, and, if admitted, a limiting instruction restricting its use
to the evaluation of the reliability of the expert witnessesâ testimony.
When the note was introduced on cross-examination of Dr. Acklin, the court
informed the jury that it was being offered âin connection with the expertâs
opinion,â but nevertheless instructed the jury that it was to consider the
evidence on the substantive issue of âthe defendantâs intentâ rather than the
reliability of Dr. Acklinâs testimony.
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diagnosis. And the Stateâs own expert witnesses gave no
indication that the past instances of abuse figured into their
conclusion that Lavoie did not suffer from a mental disorder or
lack substantial capacity. Without such a link, the past
incidents of abuse had no probative value to rebut Lavoieâs lack
of penal responsibility defense.34 Instead, they served only as
an argument that Lavoie was âby propensity a probable
perpetratorâ--a use this court expressly condemned in Morishige.
65 Haw. at 364,652 P.2d at 1127
(citation omitted).
The admission of the prior instances of abuse on the
issue of Lavoieâs lack of penal responsibility defense had a
great potential to confuse or unfairly prejudice the jury
against Lavoie. For example, the jury may have considered
whether Lavoie had a mental disorder or had substantial capacity
during the prior incidents and assumed that Lavoie was in the
same condition on the night of the shooting. Such an inference
would lack an evidentiary basis, and it would likely be an
inference of propensity prohibited under HRE Rule 404(b). And,
as stated, the justifiable stigma attached to domestic abusers
in the eyes of the general public had the potential to engender
34
Were we to conclude that the instances of abuse in this case were
relevant to rebut Lavoieâs lack of penal responsibility defense, the same
reasoning would allow the introduction of all of a defendantâs prior bad acts
through lay witnesses any time a lack of penal responsibility defense is
raised. Such a rule would be contrary to the plain text of HRE Rule 404(b)
and the circuit courtâs own initial ruling on Lavoieâs motion in limine.
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anger against Lavoie, leading the jury to decide the case on the
basis of his character rather than the applicable factual and
legal issues. Renon, 73 Haw. at 38,828 P.2d at 1273
. Thus,
even assuming arguendo that the prior instances of abuse were
admissible under HRE Rule 404(b) to rebut Lavoieâs lack of penal
responsibility defense, they should have been excluded under HRE
Rule 403 because their marginal probative value was
substantially outweighed by the danger that the jury would
improperly misuse the prior acts. Accordingly, the circuit
court erred in admitting the prior incidents of misconduct, and
the ICA erred in affirming these rulings of the circuit court.
4. Admission of the Prior Bad Acts Was Not Harmless Beyond a
Reasonable Doubt
In considering whether the erroneous admission of
evidence of a defendantâs prior bad acts warrants setting aside
a defendantâs conviction, this court considers whether the error
was harmless beyond a reasonable doubt. State v. Kazanas, 138
Hawaiâi 23, 43, 375 P.3d 1261, 1281(2016). An error is not harmless beyond a reasonable doubt if, upon review of the record as a whole, there is a reasonable possibility that the error might have contributed to the defendantâs conviction. State v. Souza, 142 HawaiďŁi 390, 402,420 P.3d 321, 333
(2018); State v. Wilson, 144 HawaiďŁi 454, 465,445 P.3d 35, 46
(2019); State v. Torres, 144 HawaiďŁi 282, 291,439 P.3d 234, 243
(2019).
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This is not a case â[w]here there is a wealth of
overwhelming and compelling evidence tending toâ disprove the
defendantâs EMED and lack of penal responsibility affirmative
defenses. Cf. State v. Toyomura, 80 Hawaiâi 8, 27, 904 P.2d 893,
912(1995) (quoting State v. Nakamura,65 Haw. 74, 80
,648 P.2d 183, 187
(1982)). Lavoie presented three highly qualified
expert witnesses that testified that, in their professional
opinion, Lavoie met the requirements for the lack of penal
responsibility defense. Two of the expert witnesses also
concluded that he was experiencing EMED at the time of the
shooting.35
Further, there was significant reason for the jury to
potentially doubt the Stateâs own experts who presented contrary
testimony. Dr. Choi acknowledged that Lavoie suffered from a
mental disorder and that his ability to control himself and to
know right from wrong on the night of the shooting was
âmoderatelyâ impaired. Dr. Choi simply disputed that the
impairment was sufficiently severe to qualify as âsubstantial.â
And Dr. Cunningham stated that he did not include in his report
a range of factors that the other experts found highly relevant
to their diagnoses, including Lavoieâs family mental illness
history, Lavoieâs abuse by his father, Lavoieâs history of being
35
Indeed, even the State in its closing argument described Dr.
Acklin as the most experienced and the most prepared of the expert witnesses.
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sexually abused, and that Lavoie was placed on suicide watch
following the shooting.
On this evidentiary record, there is a clear
possibility that any impermissible inferences that the jury made
from the wrongfully admitted prior instances of abuse colored
their evaluation of Lavoieâs defenses of lack of penal
responsibility and EMED. Additionally, the juryâs verdict may
have been influenced by resentment engendered by the wrongfully
admitted prior instances of domestic abuse. In either
circumstance, there is a âreasonable possibilityâ that the
circuit courtâs error in admitting the incidents of prior abuse
may have contributed to Lavoieâs conviction. Souza, 142 HawaiďŁi
at 402, 420 P.3d at 333. The error was accordingly not harmless
beyond a reasonable doubt.
5. The Circuit Court Improperly Instructed the Jury on the Use
of the Prior Bad Acts
Lavoie also argues that the limiting instruction that
the circuit court gave regarding the use of the prior acts
improperly allowed the jury to consider the prior misconduct on
issues for which it was not relevant.36 As stated, the courtâs
instruction provided as follows:
36
While it is unnecessary in light of our disposition to resolve
whether the limiting instructions were plainly erroneous, we address their
propriety to provide guidance to the trial court on remand.
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During this trial, you have heard evidence that the
defendant at other times may have engaged in or committed
crimes, wrongs or acts. This evidence, if believed by you,
may be considered only on the issue of defendantâs intent
to commit the offenses charged in this case. Do not
consider this evidence for any other purpose. You must not
use this evidence to conclude that because the defendant,
at other times, may have engaged in or committed other
crimes, wrongs or acts, that he is a person of bad
character and, therefore, must have committed the offenses
charged in this case.
The court gave some variation of this instruction four
times throughout the trial: when the State rested its case-in-
chief, during the cross-examination of Dr. Acklin,37 during the
direct-examination on rebuttal of Rochelle Tempo, and
immediately prior to the Stateâs closing argument.
The instruction was an incorrect statement of the
matters on which the circuit court had ruled the prior bad acts
were relevant. The court ruled that the prior acts of abuse
were admissible to rebut Lavoieâs EMED and lack of penal
responsibility affirmative defenses. A defendantâs intent,
however--as distinguished from other aspects of the defendantâs
state of mind--is not a relevant consideration with respect to
either defense. This is because a jury does not consider an
EMED or lack of penal responsibility defense unless and until it
has first determined that the State has proven all the elements
of the charged offense beyond a reasonable doubt, including that
37
Although the circuit courtâs language varied somewhat in the
limiting instruction that it gave during Dr. Acklinâs testimony, the
instruction still informed the jury that it was permitted to use the acts to
determine the defendantâs intent. See supra note 33.
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the defendant acted with the requisite intent. See Hawaiâi
Standard Jury Instruction Criminal (HAWJIC) 7.07 (âBefore you
may consider this affirmative defense, you must first determine
whether the prosecution has proven all elements of [the charged
offense] beyond a reasonable doubt.â); HAWJIC 9.08 (âIf and only
if you unanimously find that all the elements of [the murder
charge] have been proven by the prosecution beyond a reasonable
doubt . . . then you must consider whether, at the time
defendant caused the death, he/she was under the influence of
[EMED] for which there is a reasonable explanation.â). In other
words, by the time the jury considers whether the elements of an
EMED or lack of penal responsibility defense are met in a murder
trial, it has already determined that the defendant acted
intentionally or knowingly in causing the death of another
person. See HRS § 707-701.5.
The circuit court appears to have merged Lavoieâs
âintentâ with his mental condition generally, aspects of which
were relevant to his EMED and lack of penal responsibility
defenses. As discussed, whether Lavoie was under the influence
of EMED or a mental disorder that resulted in a lack of
substantial capacity were elements of the respective affirmative
defenses. However, neither of these considerations fall within
the plain meaning of the term âintentâ. See Blackâs Legal
Dictionary 964 (11th ed. 2019) (â[T]he mental resolution or
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determination to do [an act].â).38 Further, the court ruled with
respect to the EMED defense that the bad acts were probative not
only of whether Lavoie was under the influence of EMED but also
the separate issue of whether EMED was a reasonable reaction
given the circumstances. Even were we to construe intent to
refer to Lavoieâs general mental condition, the reasonableness
of the explanation for the EMED was an objective inquiry under
the circumstances as Lavoie believed them to be--separate from
Lavoieâs subjective mental state at the time of the offense.
Accordingly, the courtâs instruction informing the jury that it
could consider the prior bad acts to show Lavoieâs intent was
problematic in multiple respects.39
38
HRS § 702-206 (1993) provides as follows:
Definitions of states of mind. (1) âIntentionally.â
(a) A person acts intentionally with respect to his
conduct when it is his conscious object to engage in such
conduct.
(b) A person acts intentionally with respect to attendant
circumstances when he is aware of the existence of such
circumstances or believes or hopes that they exist.
(c) A person acts intentionally with respect to a result
of his conduct when it is his conscious object to cause
such a result.
39
The circuit court may have derived the language of its
instruction from HRE Rule 404(b), which permits the use of evidence of other
crimes, wrongs, or acts to prove a âfact that is of consequence to the
determination of the action, such as . . . intent.â The enumerated examples
of facts of consequence included in HRE Rule 404(b) are not exhaustive,
however, and the limiting instruction should have been tailored to the
specific determination to which the court deemed the prior bad acts were
relevant.
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B. The Circuit Court Was Not Required to Give a Jury Instruction
Defining EMED
Lavoie argues that the EMED instructions given to the
jury did not properly define EMED and unnecessarily highlighted
and isolated self-control so as to effectively create an
additional element to prove the defense. The circuit court
provided the jury with the following instruction:
Extreme mental or emotional disturbance has two elements.
These elements are: One, that the defendant was, at the
time he caused the death of the other person, under the
influence of extreme mental or emotional disturbance. And
two, there was a reasonable explanation for the extreme
mental or emotional disturbance.
In addition, the court instructed the jury that, âThe
question of the defendantâs self control or the lack of it at
the time of the offense is a significant factor in deciding
whether he was under the influence of extreme mental or
emotional disturbanceâ (self-control instruction).
In State v. Haili, the defendant similarly argued that
circuit courts must provide the jury with a definition of EMED.
103 HawaiďŁi 89, 107, 79 P.3d 1263, 1281(2003). We rejected the defendantâs argument and observed that the HawaiďŁi Legislature has not defined EMED, and accordingly âthe circuit courts need not define the term when instructing the jury; instead, the jury is to give the phrase its plain meaning.â Id. at 108,79 P.3d at 1282
; see also Roxas v. Marcos, 89 HawaiďŁi 91, 148,969 P.2d 1209, 1266
(1998) (noting that the jury instructions given did
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not include the legal definitions of âdefraudâ or âdeceit,â and
presuming that the jury accordingly applied the commonly
understood meaning of those terms). We thus concluded that the
circuit court correctly refused to define EMED. Haili, 103
HawaiďŁi at 109, 79 P.3d at 1283.
Additionally, the circuit court provided the jury with
a self-control instruction in Haili that was identical to the
one given in this case. See id. at 107, 79 P.3d at 1281. We held that the circuit court did not err in providing the jury with a self-control instruction because self-control is a âsignificant, even determining, factor in deciding whether the [defendant] was under the influence of an extreme emotional disturbance such that [the defendantâs] conduct would fall under HRS § 707â702(2).â Id. at 108,79 P.3d at 1282
(quoting State v. Matias,74 Haw. 197, 204
,840 P.2d 374, 378
); see also State v. Perez, 90 Hawaiâi 65, 74,976 P.2d 379, 388
(1999).
We thus conclude that the circuit courtâs EMED
instructions in this case were not prejudicially insufficient.40
See Haili, 103 HawaiďŁi at 108, 79 P.3d at 1282.
40
Lavoie contends that the following instruction should also have
been submitted to the jury:
An extreme mental or emotional disturbance is the emotional
state of an individual, who has an extreme emotional
reaction to an unusual and overwhelming stress as a result
of which there is a loss of self-control and reason is
(continued . . .)
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C. The Circuit Court Should Have Given a Merger Instruction
Lavoie contends that the circuit court plainly erred
in not providing the jury with a merger instruction because the
same factual incident comprised both the felon in possession and
place to keep offenses, the acts occurred at the same time, and
they were committed with the same intent.
Generally, â[w]hen the same conduct of a defendant may
establish an element of more than one offense, the defendant may
be prosecuted for each offense of which such conduct is an
element.â HRS § 701-109(1) (1993). A âdefendant may not,
however, be convicted of more than one offense if . . . [t]he
offense is defined as a continuing course of conduct and the
defendantâs course of conduct was uninterrupted, unless the law
provides that specific periods of conduct constitute separate
offenses.â41 HRS § 701-109(1)(e). Thus, this court has
(. . . continued)
overborne by intense feelings, such as passion, anger,
distress, grief, excessive agitation or similar emotions.
(Emphasis added.) Lavoieâs proposed instruction incorrectly indicated
requirements for an EMED defense that are not included in HRS § 707-702(2).
Specifically, Lavoieâs proposed instruction requires a showing that the
defendant had been exposed to âan extremely unusual and overwhelming stress.â
As we stated in State v. Seguritan, âNo such provision appears in the
statute.â 70 Haw. 173, 174,766 P.2d 128, 129
(1988). Additionally, the
proposed instruction denotes an emotional state that âas a result of which
there is a loss of self-control and reason is overborne,â which is also not a
statutory requirement. Thus, the circuit court was not required to provide
the jury with Lavoieâs proposed EMED instruction.
41
The purpose of this statute is to âlimit the possibility of
multiple convictions and extended sentences when the defendant has basically
(continued . . .)
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concluded that only one crime is committed when â(1) there is
but one intention, one general impulse, and one plan, (2) the
two offenses are part and parcel of a continuing and
uninterrupted course of conduct, and (3) the law does not
provide that specific periods of conduct constitute separate
offenses.â State v. Hoey, 77 HawaiďŁi 17, 38, 881 P.2d 504, 525
(1994).
Whether a particular criminal offense can be charged
as a continuous offense is a question of law. State v. Decoite,
132 HawaiďŁi 436, 442, 323 P.3d 80, 86(2014) (Pollack, J., dissenting); see also Hoey, 77 HawaiďŁi at 38,881 P.2d at 525
(âIt is possible for kidnapping and robbery charges against a defendant to merge, pursuant to HRS § 701-109(e)[.]â). Accordingly, â[a]n offense that may be charged as a continuing offense permits culpable acts to be charged as separate offenses or as a continuing offense.â Decoite, 132 HawaiďŁi at 442,323 P.3d at 86
(Pollack, J., dissenting) (emphasis omitted).
The test for whether a crime can be charged as a
continuous offense is whether the statute precludes charging an
offense as a continuous offense, and whether the element(s) of
(. . . continued)
engaged in only one course of criminal conduct directed at one criminal
goal.â HRS § 701-109 cmt.
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the offense may constitute a continuous, unlawful act or series
of acts, however long a time the act or acts may occur. See id.
at 438, 323 P.3d at 82(majority opinion) (citing State v. Arceo, 84 HawaiďŁi 1, 18-19,928 P.2d 843, 860-61
(1996)); State v. Apao, 95 HawaiďŁi 440, 447,24 P.3d 32, 39
(2001) (holding that a crime may be charged as a continuing offense if, inter alia, âthe offense is not defined in such a manner as to preclude it from being proved as a continuous offenseâ); State v. Temple,65 Haw. 261
, 267 n.6,650 P.2d 1358
, 1362 n.6 (1982) (âA continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy . . . .â (emphasis omitted)); State v. Martin,62 Haw. 364, 371-72
,616 P.2d 193, 198
(1980) (holding that theft was a continuous offense because
the language of the theft statute reflected a legislative intent
to prohibit continuing conduct âsince two elements of the
pertinent crime . . . involve conduct that can extend beyond
isolated momentsâ).42
42
Our case law has recognized several offenses that could be
charged as continuous offenses. See, e.g., State v. Yokota, 143 HawaiďŁi 200,
207, 426 P.3d 424, 431(2018) (holding that forgery could be charged as a continuous offense); State v. Stenger, 122 HawaiďŁi 271, 289,226 P.3d 441, 459
(2010) (holding that theft by deception is a continuous offense); State v. Rapoza, 95 HawaiďŁi 321, 329,22 P.3d 968, 976
(2001) (holding that attempted murder in the second degree could be charged as a continuous offense); Hoey, 77 HawaiďŁi at 38,881 P.2d at 525
(holding that robbery is a continuous offense); Martin,62 Haw. at 369
,616 P.2d at 197
(holding that theft is a
continuous offense).
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If the statute provides that distinct acts constitute
separate offenses, then conduct may not be charged as a
continuous offense. For example, in the context of sexual
assault, the legislature has prescribed that âeach act of sexual
penetration shall constitute a separate offense.â HRS § 707-700
(2014 & Supp. 2016); see also Arceo, 84 HawaiďŁi at 16, 928 P.2d
at 858(âMultiple sex acts do not merge into a single continuing offense because the defendant can be convicted and punished for each separate act.â (emphasis omitted)). Thus, this test involves two prongs: first, whether the statutory language prohibits charging the offense as a continuous offense, and second, whether an element of the offense can âextend beyond isolated moments.â Martin,62 Haw. at 371-72
,616 P.2d at 198
.
In State v. Matias, the defendant was convicted of
felon in possession and place to keep. 102 HawaiďŁi 300, 75 P.3d
1191(2003). We vacated the defendantâs convictions because the circuit court failed to provide a merger instruction to the jury. Id. at 306,75 P.3d at 1197
. As we would later explain, both offenses arose out of the same elemental conduct, âi.e., what the defendant did with the object, namely, âpossess[ed] it.ââ State v. Frisbee, 114 HawaiďŁi 76, 83,156 P.3d 1182, 1189
(2007) (alteration in original) (quoting Matias, 102 HawaiďŁi at 303, 306,75 P.3d at 1194, 1197
).
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Accordingly, in vacating the felon in possession and
place to keep convictions and remanding for a new trial for
failure to instruct the jury on merger, the Matias court
concluded that these statutes did not preclude the charging of
these offenses as continuous offenses. Implicit in the courtâs
holding was the conclusion that the statutes are comprised of
elements--namely, the element of possession--that may extend
beyond isolated moments.
The ICA subsequently followed our holding in Matias in
State v. Padilla. As in Matias, the defendant in Padilla was
convicted of felon in possession and place to keep, and the
convictions were vacated because the circuit court failed to
provide a merger instruction to the jury. Padilla, 114 HawaiďŁi
507, 508, 518, 164 P.3d 765, 766, 776 (App. 2007).
Here, Lavoie was also convicted for violating the
felon in possession (HRS § 134-7(b)) and place to keep (HRS
§ 134-23(2)) statutes, neither of which excludes charging the
offense as continuous. HRS § 134-7(b) prohibits a person
convicted of a felony from âown[ing], possess[ing], or
control[ling] any firearm.â HRS § 134-23(a) provides that âall
firearms shall be confined to the possessorâs place of business,
residence, or sojourn.â Unlike the statute at issue in Arceo,
the HawaiďŁi legislature has not set forth language in either
statute that defines specific periods of conduct as separate
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offenses. Additionally, the elements of each offense involve
possession, which can continue longer than a single point in
time. Martin, 62 Haw. at 371,616 P.2d at 198
(â[E]xercise of
control over [] property . . . involve[s] conduct that can
extend beyond isolated moments.â).
Thus, the offenses of felon in possession and place to
keep may be charged as continuous offenses, and the jury was
required to determine whether there was âone intention, one
general impulse, and one plan,â and whether the two offenses
merged. Matias, 102 HawaiďŁi at 305, 75 P.3d at 1196; Hoey, 77 HawaiďŁi at 38,881 P.2d at 525
.
We have previously recognized that the jury is tasked
with making the factual determination of whether two offenses
merged. In Matias, the defendant was arrested after a police
officer found Matias in his friendâs car with a loaded handgun
under his seat. 102 HawaiďŁi at 303, 75 P.3d at 1194. We held that the defendant was entitled to a merger instruction because it was clear that the basis for the juryâs guilty verdicts on both counts âarose out of the same factual circumstances.â Id. at 306,75 P.3d at 1197
. We stated that
it is common-sensical that a defendant charged in
connection with the same incident with the offenses of
place to keep . . . and [felon in possession] . . . would,
in virtually every instance, be entitled to a merger
instruction, pursuant to HRS [§] 701-109(1)(e), because
both offenses would intrinsically arise out of the same
conduct and attendant circumstances.
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Matias, 102 HawaiďŁi at 306 n.10, 75 P.3d at 1197 n.10.
Similarly, in Padilla, the defendant was arrested for
firing a gun from his car and a subsequent search of his truck
revealed a loaded pistol in the truck bed. 114 HawaiďŁi at 511,
164 P.3d at 769. Relying on Matias, the ICA found that the circuit court committed plain error in failing to give a merger instruction because â[a]ll factual issues involved in [] determin[ing] [whether there was one intention, one general impulse, and one plan] must be decided by the trier of fact.â Id. at 517,164 P.3d at 775
(emphasis omitted) (citing Matias, 102 HawaiďŁi at 305,75 P.3d at 1196
).
Here, both the felon in possession and place to keep
offenses were charged as having occurred on the same date, and
the courtâs instructions on the elements of these offenses
specified that date. Whether Lavoieâs conduct constituted
âseparate and distinct culpable acts or an uninterrupted
continuous course of conductâ was a question of fact that was
required to be determined by the jury. Matias, 102 HawaiďŁi at
306, 75 P.3d at 1197 (internal citations omitted). And, the
jury should also have been required to determine whether Lavoie
had one intention, one general impulse, and one plan to commit
both offenses. The circuit courtâs failure to instruct the jury
to make these determinations was prejudicial and plainly
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erroneous. See Matias, 102 HawaiďŁi at 306, 75 P.3d at 1197; Padilla, 114 HawaiďŁi at 517,164 P.3d at 775
.
The ICA, in affirming the circuit court, determined
that the two offenses arose from separate and distinct factual
circumstances: it found that the felon in possession offense was
completed before Lavoie left his home on the day of the
shooting, while the place to keep offense was separately
committed when Lavoie placed the firearm in his car. Thus, the
ICA held that no merger instruction was required. This holding
is incorrect for two reasons. First, the ICA, in reaffirming
its own unpublished decision in State v. Stangel, held that a
place to keep offense cannot be a continuous offense because it
âis not defined by statute as a continuing course of conduct.â
(Citing No. CAAP-XX-XXXXXXX, 2015 WL 836928, at *9 (Haw. App.
Feb. 26, 2015).) As discussed, this analysis is incorrect under
our law and also contrary to Matias and Padilla, which
determined that these crimes may be punished as continuing
offenses.43
Second, the ICA erred in affirming the circuit courtâs
improper fact finding. In this case, the jury was responsible
for determining whether the place to keep and felon in
possession offenses were factually separate and distinct and
43
To the extent that Stangel holds that a place to keep offense
cannot be a continuous offense, it is overruled.
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whether âthere [was] but one intention, one general impulse, and
one plan,â not the court. The circuit court found that the
felon in possession offense âhad been committed before the
defendant had ever left his homeâ while the place to keep
offense âoccur[red] with the firearm being loaded and then
transporting it in a place other than his place of business,
residence, or sojourn.â Trial courts are not tasked with making
factual findings regarding when each offense occurred or whether
the defendantâs conduct constitutes âan uninterrupted continuous
course of conductâ; the jury must make such determinations.
Matias, 102 HawaiďŁi at 306, 75 P.3d at 1197.
The circuit court has the duty and ultimate
responsibility to instruct the jury on the proper and relevant
law. State v. Adviento, 132 HawaiďŁi 123, 137, 319 P.3d 1131,
1145(2014). The circuit court failed to do so in this case by omitting a merger instruction. Failure by the circuit court to submit a merger instruction constituted plain error and was not harmless beyond a reasonable doubt.44 Frisbee, 114 HawaiďŁi at 84,156 P.3d at 1190
; Matias, 102 HawaiďŁi at 306,75 P.3d at 1197
.
44
Additionally, as discussed supra note 10, Lavoie requested that
the State be precluded from calling Victoria Toledo as a witness because the
prosecutor had disclosed that Toledo had previously told him (the prosecutor)
that an alleged encounter she had with Lavoie occurred several days prior to
the shooting and not on the day of the shooting as she testified. Instead,
the prosecutor was permitted as âas an officer of the courtâ to make the
following unsworn statement to the jury: â[O]n July 18, 2014, in a telephone
conversation with [] Victoria Toledo, I recall her saying that Marlin Lavoie
(continued . . .)
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V. CONCLUSION
Accordingly, the ICAâs June 6, 2018 Judgment on Appeal
and the circuit courtâs August 13, 2015 Judgment, Conviction and
Sentence are vacated, and this case is remanded to the circuit
court for further proceedings consistent with this opinion.
Matthew S. Kohm /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Emlyn H. Higa /s/ Sabrina S. McKenna
(Renee I. Delizo with him
on the briefs) /s/ Richard W. Pollack
for respondent
/s/ Michael D. Wilson
(. . . continued)
told her, âIf I canât have Malia, nobody else will,â and that the
conversation took place a few days before the shooting.â
However, the prosecutor proceeded to rely on Toledoâs testimony--
including her statement that the encounter occurred the same day as the
shooting--during the trial. On redirect examination of Dr. Cunningham, for
example, the prosecutor asked what his opinion would be âif the defendant
. . . had previously told someone at about noon that same day that if I canât
have her, nobody will.â
We note that the manner in which the prosecutor corrected the
record in this case--an unsworn statement made to the jury in open court--is
problematic. For instance, the jury in a criminal trial is specifically
instructed that statements and remarks by counsel are not evidence. See
State v. Valdivia, 95 Hawaiâi 465, 480, 24 P.3d 661, 676 (2001). Lavoie has
not raised the flawed nature of this procedure on appeal, and it is not
necessary for this court to resolve whether it warrants plain error review in
light of our disposition of this case. Nevertheless, this matter is brought
to the attention of the court and counsel so that the procedure used at the
trial is not repeated.
64